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LABOR IN ITS RELATIONS TO 
LAW 



V 



LABOR IN ITS RELATIONS 
TO LAW 



jfcur lectured ^clivereD at tbe plgmoutb 

School of Htbics, 3ul\j, 1895 



f V 

F. J. STIMSOX 



AUTHOR OF AMERICAN STATUTE LAW," " HAND-BOOK TO THE 
LABOR LAW OF THE UNITED STATES," ETC., ETC. 




£oH37 s 






NEW YORK 

CHARLES SCRIBNER'S SON'S 

1895 



K-. 






Copyright, 1895, by 
CHARLES SCRIBNER'S SONS 



TROW DIRECTORY 

PRINTING AND BOOKBINDING COMPANY 

NEW YORK 



CONTENTS 



i 

PAGE 

History of the Law of Labor i 



II 
The Employment Contract, 40 

. Ill 
Strikes and Boycotts 78 

IV 
•Forecast of the Future, 11S 



LABOR IN ITS RELATIONS TO 
LAW 



HISTORY OF THE LAW OF LABOR 

Earliest Employment Relation was Slavery. 

Logically, the simplest relation of employer and 
employee is that of slavery, and it is convenient, in 
sketching the history and tendency of this em- 
ployment relation — certainly the second in impor- 
tance of human relations — that this is so ; for his- 
torically, also, it came first ; the simplest came 
first. 

The greatest ethical lesson of modern historical 
research has, I think, been to destroy the fiction 
of the Golden Age. For all classical writers refer 
to an actual time when all things were perfect, 
and whence humanity has deteriorated to modern 
faults and modern laws. Perhaps there is a sur- 
vival of this classic tradition in the rhetoric of the 
modern demagogue, who usually assumes that 
mankind, and more specifically the glowing gen- 



2 LABOR IN ITS RELATIONS TO LAW 

eration, are naturally perfect, and would always 
seek the better reason were it free to them to 
choose. Unhappily, neither the age of gold nor 
the heart of gold is a reality. They are to be won 
by hard work, and by training of character, con- 
sciously directed ; and the solace lies in this, that 
we have now put them in the future rather than 
the past. 

The earliest and simplest relation, then, of human 
labor is that of slavery ; and the conflicts of this 
day are nothing new, but are to be found in his- 
tory, particularly in the history of our own race. 
Perhaps, even, we shall not find the remedies new, 
or new in principle, at least, though we may have 
better hope of them in our time than of old, now 
that the coarsest work is done for us by nat- 
ural agencies, and humanity has, or should have, 
leisure for reason and kindliness. 

Present Altruistic Tendency to Favor Labor. 

The writings of Kidd and others are not neces- 
sary to tell us that the universal tendency among 
people who think to-day is one of allowance for 
presumption in favor of the laborer as against his 
employer. Possibly this is solely due to the fact 
that the great sins of the employer of labor are all 
past. As Herbert Spencer has pointed out, com- 
plaints only become audible when the serious dan- 
ger of their cause has been removed. So> women 



HISTORY OF THE LAW OF LABOR 3 

never complained of dependence until the law be- 
gan to make them independent. But I think we 
are all glad of this fact — glad that our news- 
papers, our speakers, and our writers are easily led 
to take a side, where they can, for the cause of 
labor. The world has been organized always in the 
interest of the clever few. No greater interest lies 
in life to-day than how so to regulate it as to give 
the multitude their chance. I assume that we all 
come here predispositioned to that side. I shall 
frankly take that position in these lectures. But 
if we so put ourselves in the place of the laborer, 
or the laborer's friend, our first duty is clearly to 
see that no fault, no unfairness, no back-sliding 
into older, worse conditions be on our side. As 
the advocate of more equitable treatment for work- 
ingmen we should come into our court with clean 
hands. I say this at the start lest you should 
later think me over-scrupulous in showing where 
modern labor agencies are unjust, where they 
overstep the mark, where they restrict liberty — 
An_ilo-Saxon liberty ; the kind that our race alone 
has won — and where they show a tendency to go 
back to the cruder remedies of earlier times, or to 
the less ennobling social order of inferior races. 

Agricultural Labor Peculiar in its Conditions. 

I shall not delay to speak of agricultural labor. 
The farmer and the husbandman have their own 



4 LABOR IN ITS RELATIONS TO LAW 

problems to solve ; they are affected by peculiar 
conditions, by necessary peculiarities in the owner- 
ship of the soil, the nature and proprietorship of 
the land, their raw material, being the land itself. 
So far as their conditions can be altered by any- 
thing we can do, they are benefited by the gen- 
eral advance of other laborers as they are injured 
by their general degradation. But the fact that 
the problems of agricultural labor are peculiar is 
shown as clearly in the latest statutes of our West- 
ern States — in Nebraska, for instance, whose drastic 
eight-hour law did not pretend to extend itself to 
the people on farms — as in the earliest known con- 
dition of things in England, where the villain was 
appendant to the land like a tree and could only 
be severed from it by death or sale. Still he was 
never a slave. It is important to remember this, 
as for a long time the contrary theory was main- 
tained ; but even the agricultural laborer was never 
a slave in England. There was a real bargain, 
says Thorold Rogers, between lord and serf. The 
serf may have had few rights of property, but he 
had more rights of person, and he was at least se- 
cure from dispossession. Although he was dis- 
abled from migrating to any other habitation than 
the manor of his settlement, and could not bear 
arms in the militia, he always could bear arms in 
the army of the king ; and, so long as he stayed 
at home, his relation to the lord was a definite 



HISTORY OF THE LAW OF LABOR 5 

contractual right, which might be commuted, and 
early was, into a small money payment, which 
is practically indistinguishable from rent for his 
land. 

But Slavery never Existed Among Anglo-Saxons. 

We start, then, here : Though slavery is the 
simplest labor relation, it has not existed, at least 
within historic times, in our race — a peculiar rea- 
son why we may claim England as the birthplace 
of modern industrial conditions. And if the 
agricultural laborer was not a slave, the artisan was 
still less so. No vestige, in the earliest times, of 
any servile relation can be found. Artisans were 
localized, it is true, because staying in one place 
was part of the general social condition of the 
time. The smith, the farrier, the two or three 
shepherds, the miller, later the carpenter, the tan- 
ner or shoemaker, later still the weaver and the 
baker, each belonged to one or, at most, to two 
or three neighboring communities, and served all 
indiscriminately for a fixed wage, paid at first by 
the day, later by the piece ; and if the lord him- 
self exacted his services and did not pay for the 
same with the rest, it was either a clear extortion 
(for we are here stating the facts, not denying that 
there grew up in the feudal baron a very definite 
notion of servile relation from his tenants to him) 
or supposed to be in commutation of rent. 



6 LABOR IN ITS RELATIONS TO LAW 

Later attempts were indeed made — one in the 
time of Henry II.,. another in that of Elizabeth — 
on the part of the privileged classes to put the in- 
dustrial laborer also into servile relation, and their 
chancellors naturally endeavored to justify the 
step by historic precedent ; but I think I have 
stated the best modern opinion of the fact. 

Earliest English Labor Relation One of Separate Con- 
tract. 

We start, therefore, with our industrial laborer 
a free individual, and his relation one of separate 
contract with his employer. Such is substantially 
the letter of the law to-day. But the very latest 
definition I find in one of the very latest works on 
labor, published only last year, is, that the essence 
of the modern trade-union is " collective bargain- 
ing,' ' that is, endeavoring to enforce a relation, 
not of separate and separable contract between the 
employers and each employee, between the lord 
and each peasant, but a contract between the em- 
ployer, or the neighboring or related bodies of 
employers, and the workman, or a controlling 
force of the workmen organized into a trade- 
union. But thus far, also, we had progressed 
some eight hundred years ago — in the mediaeval 
guild. The substantial distinction between the 
oldest form of guild and the modern trade-union 
would appear to be that the bond of the guild was 






HISTORY OF THE LAW OF LABOR 7 

rather local, while that of the trade-union is the 
nature of the employment. Still, even in this 
particular, as we all know, the general guild of an 
English borough was soon ditlerentiated into the 
separate guilds of the various crafts, arts, or mys- 
3 which made up its industrial body politic. 
And again, just as the latest report of the British 
Royal Commission complains that the essence of 
trade-unionism is not solidarity, but protection of 
a special trade or part of it ; so the essence of the 
mediaeval guild was monopoly. Perhaps its ear- 
object was to prevent the employment of 
strangers, and our oldest law reports are full of 
cases of subtle by-laws and regulations which far 
surpass in complexity the restrictions of the nar- 
rowest trade-union or the most exclusive modern 
club. The Royal Commission's report just men- 
tioned complains that when the representatives of 
the Amalgamated Society of Engineers spoke of 
the necessity of absorbing the unemployed, they 
announced their intention of putting further re- 
strictions on the admission of apprentices to their 
trade. In other words, they contemplated not 
the employment of the unemployed, but their ex- 
m from the organization and industry of the 
Amalgamated Society of Engineers. Now, most 
of the things which seem to us to smack of slavery 
in mediaeval regulations arise from this principle, 
which is really one of//-/:. Membership in a 



8 LABOR IN ITS RELATIONS TO LAW 

local guild was a birthright. It was, therefore, 
no such great unfairness, that a person who sought 
employment in some other town might be dragged 
back to his native field to labor, when it was thus 
artificially protected for him. This was the chief 
artificial regulation. Otherwise the relations of 
laborer and lord were left much to settle them- 
selves, both sides relying on natural causes for the 
supply of laborers and of labor to be done. The 
lord could exact a fine from an absconding serf; 
on the other hand, the serf could not gain en- 
trance in the guild of a town not his own until 
he had resided and worked in it for a year and a 
day. There was no attempt at the regulation of the 
price of labor ; but for some centuries matters went 
on in this way — a condition of affairs by no means 
so unlike that now recognized by law as were con- 
ditions which afterward happened in the sixteenth, 
or may now happen in the twentieth, century. 

And the law never attempted to fix the price of 
the raw material ; but it did soon attempt to fix 
that, part of the price of a necessary commodity 
which was determined by human agencies alone. 
And this would appear to have been the danger- 
ous precedent. 

The Statute of Laborers. 

So matters went on until the middle of the four- 
teenth century, when was passed the Statute of 






HISTORY OF THE LAW OF LABOR 9 

Laborers. Up to that time matters had gone on 
fairly well, and had adjusted themselves. The 
agricultural laborer got wages sufficient for his 
support, the artisan from two to three times as 
much, the clerk or scribe rather less than the art- 
isan ; nor were the hours of labor long. Thorold 
Rogers proves pretty conclusively that they were 
probably only eight hours a day, and the workman 
was paid extra for overtime. What brought this 
state of affairs to an end. and that in a purely for- 
tuitous way, appears to have been the great plague, 
known as " the black death," in 1348. The first 
effect of this, of course, by vastly decreasing the 
supply of labor, was to double or treble wages. 
Prices in general went up, though not in the same 
proportion. The small farmer was little injured ; 
but the large land-owner, the lord, or, as we should 
say, the capitalist, thought he was ruined. Then, 
with the bad example of the laws attempting to 
regulate prices before him, he induced, first, the 
king to issue a proclamation, that, despite the de- 
mand for labor, no higher than customary wages 
should be paid ; and then, as this was necessarily 
disregarded, the Parliament passed the statute 
which remained a law until the fifth year of Queen 
Elizabeth, and contained eight clauses, of which, 
leaving out those which merely concerned the 
form of penalty, four concern us to-day. These 
four are, substantially : 



io LABOR IN ITS RELATIONS TO LAW 

i. No person under sixty, serf or free, shall de- 
cline to undertake farm labor at the wages that 
had been customary in the year 1347, except they 
were possessed of lands or private means or en- 
gaged in some mechanical or mercantile industry ; 
the lord having the first claim to their labor, but 
those who declined to work either for him. or for 
others could be sent to the common jail. 

2. Artificers were made liable to the same con- 
ditions, and the artificers enumerated were sad- 
dlers, tanners, curriers, shoemakers, tailors, smiths, 
carpenters, masons, tilers, pargetters (plasterers), 
carters, and others. Doubtless they would have 
extended the law to operatives in the textile in- 
dustries, but that at that time these were neces- 
sarily possessed of special skill, and their craft was 
enough of a " mystery " to lie outside of the care 
of the English privileged classes, it being mostly 
in the hands of Flemings or other foreigners. 

3. That food must be sold at reasonable prices, 
and, 

4. Alms - giving to able - bodied laborers was 
strictly forbidden. 

\» Labor Compulsory. 

It will be noted that there are three important 
principles in this statute : first, that of compul- 
sory labor ; second, the legal limitation of wages ; 
and third, the prohibition of alms-giving, or chari- 



HISTORY OF THE LAW OF LABOR n 

table support. The first principle may have had 
some effect during the two or three centuries 
through which the law lasted ; but Thorold 
Rogers tells us that the second principle — that of 
the regulation of wages — did not in practice work, 
but was commonly evaded, even in the case of 
agricultural laborers, where, from the nature of 
the case, it had most effect ; and the third prin- 
ciple, that of forbidding alms-giving, was radi- 
cally altered by the statute of Elizabeth, which 
founded the modern poor-law system of England, 
and which the nineteenth century has come to be- 
lieve was the greatest of all agencies in the pau- 
perization of English labor. 1 We will notice in 
passing that at this time — the fourteenth century 
— women were employed in field work, being paid 
at the rate of a penny a day, substantially less 
than the ordinary payment of male labor. De- 
spite this Statute of Laborers, the ordinary wages 
of agricultural labor increased, in men's work 
about fifty per cent., while in women's work it was 
doubled. The peasants, says Thorold Rogers, i?iet 
the law by combinations ; or, in modern English, 
the serfs entered into what are now called trade- 
unions, and supported each other in resistance of 

1 See the monumental evidence of the effect of such state 
help, both on economic and moral conditions, contained in 
the voluminous report to the House of Commons in 1S34, 
reprinted by special order in 1 1 



12 LABOR IN ITS RELATIONS TO LAW 

the law and in demands for higher wages. Pos- 
sibly as a consequence of this Statute of Labor- 
ers came the celebrated insurrection of Wat Ty- 
ler, as a result of which all the incidents of 
villainage were abolished, and all laborers de- 
clared free by the sovereign of England. It is 
noteworthy that Kent took the lead in this move- 
ment ; " for there never have been serfs in Kent. ' ' 
To have been born in that county was a bar to 
the proceedings by which a lord claimed the re- 
covery of his serf. Attempts were constantly 
made to enforce the Statute of Laborers by sub- 
sequent acts of Parliament ; but, says Thorold 
Rogers, the fifteenth century was the golden age 
of the English laborer, if we are to interpret the 
wages which he earned by the cost of the neces- 
saries of life. These efforts failed, and the rate 
kept steadily high, the wages of the artisan being 
generally sixpence a day, and the agricultural 
laborer fourpence ; and women received from half 
to two -thirds as much. Wages were reduced a 
century later, under Henry VIII., by the indirect 
process of debasing the coinage ; and by an at- 
tempt, partially successful, to suppress the guilds 
and confiscate their property, both the laborer's 
power of resistance and his benefit society were 
taken away. 



HISTORY OF THE LAW OF LABOR 13 

Regulation of Wages Finally Successful Under Eliza- 
beth. 

• Then came the statute of Elizabeth, which first 
successfully imposed a legal restraint upon wages, 
both in husbandry and in handicrafts, and this 
system was continued under legal sanction until 
1 8 1 2 . and k ' by a sufficient understanding ' ' for long 
after that date. All persons able to work as 
laborers or artisans, and not having independent 
means, were compelled to work upon the farms. 
The statute both fixed the hours of work and 
gave the justice power to fix the rate of wages. 
Agricultural labor was further depressed, and in- 
dustrial labor somewhat protected, by that pro- 
vision of the statute which prohibited anyone 
from exercising any trade, craft, or occupation 
then in use in England and Wales without first 
serving an apprenticeship of seven years. This 
part of the statute, passed in 1662, was not re- 
pealed until 1875. I shall postpone for the pres- 
ent any notice of those statutes w r hich provided for 
the suppression of combinations among workmen 
he raising of their wages, as this matter, be- 
longing rather to the law of remedies, will come 
more naturally in a subsequent lecture upon 
strikes and boycotts; but will note here that in 
1796 a statute fixed a day's work at twelve hours, 
with one hour for dinner, probably a longer day 
than was enacted three hundred years before. 



14 LABOR IN ITS RELATIONS TO LAW 

General Review. 

So much for general review of the history of 
English labor legislation, and it may be sum- 
marized in the statement that the rate of wages, 
originally left to natural laws, was attempted to 
be fixed by law during about three centuries, and 
a strict apprenticeship both required and limited; 
in other respects industrial labor was always free, 
and at liberty to seek employment where it would, 
subject only to the limitations of place, which 
were imposed by natural custom or by the system 
of residence in corporate guilds and to the limita- 
tions, or the protection, as to rates and employ- 
ment which were furnished, in the interest of the 
laborer or handicraftsman, by his own trade- 
guilds; and since about 1812 it has been free in 
all respects, even as to wages and prices. There 
are thus (but separated by no clear demarcation) 
four stages — serf-relation, guild control, state con- 
trol, and free contract. 

Modern Factory, etc., Legislation. 

Nothing in a world of uncertainty can, how- 
ever, remain crudely logical. The perfect system 
of laissez-faire hardly lasted a generation when, 
for an aggregation of labor, it gave way to the 
principle of the factory acts. These began about 
1804; and if not strange, it is suggestive, that 
the culminating statute, the ten-hour law of 1847, 



HISTORY OF THE LAW OF LABOR 15 

signalized, with the same rejoicings on the part of 
the laboring world, a return to the same principle 
of privilege or state control that had been abol- 
ished by the laboring world amid bonfires and 
bell-ringing in the Paris of 1 791, just fifty years 
before: the only difference being that the older 
system controlled prices, not conditions ; the re- 
newal controlled conditions and not prices. 

It was doubtless the modern factory which 
brought about the change. The increased pro- 
portion of capital to labor in production, but still 
more the necessary localization, with its attendant 
evils, was making the mill-hands villeins append- 
ant to the factory as truly as in early times there 
had been villeins appendant to the land. The 
conditions of child-labor and woman-labor, in 
particular, were rapidly becoming intolerable. 
Practically as unable to leave the factory as the 
villeins to leave the manor, the tyranny was as 
insufferable, their conditions of health and morality 
infinitely worse. Adam Smith himself foresaw 
that before the evils of this artificial condition 
the logic of laissez-faire would have to yield. 
The factory acts passed up to 1847 were rapidly 
copied in the manufacturing States of this country. 
And substantially all the principles of our later 
legislation were first embodied in these statutes 
passed in England during the early years of the 
reign of Victoria. It may be well to get a gen- 



16 LABOR IN ITS RELATIONS TO LAW 

eral view of these in the time remaining for this 
lecture, leaving out only the law directly relating 
to the labor contract to be the main subject of 
the next. 

Eight-hour Laws. 

Plrst, let us consider the hours of labor. It 
may be generally stated that no attempt has yet 
been made by legislation in England or America 
to prescribe for how long a period of each day, 
in general occupations, a man twenty-one years 
old shall work. I have noted that by the early 
custom of England only eight hours was probably 
considered a full day, and first by statute in the 
early part of this century it was fixed at twelve, 
which statute, if not inoperative, was soon re- 
pealed. In England to-day there is great dis- 
agreement, both among employers and among 
laborers, as to the advisability of a general eight- 
hour law. There are now said to be six million 
non-unionist workers, and only one million trade- 
unionists, up to date, in England ; the six million 
non-unionists do not demand any system of indus- 
trial regulation of hours of labor whatever, nor 
even do all the trade-unionists. Many of the 
trades complain that neither employer nor em- 
ployed could exist under any system of regulations 
that prevented them from making up in good times 
for their losses incurred in periods of depression. 



HISTORY OF THE LAW OF LABOR 17 

Perhaps, however, the bulk of trade-unionists have, 
in England, accepted the principle of depriving 
the individual of his full freedom of contract in 
settling his hours of labor, and they partly justify 
by the plea that such freedom is irrevocably lost 
already; inasmuch as modern business establish- 
ments can be conducted only on the basis of uni- 
formity in the men's hours of labor with the 
women's and children's which are so regulated ; 
and the chief remaining objection in the trade- 
unions to the government fixing the hours of labor 
comes only in those trades which are directly sub- 
ject to foreign competition. 

In the United States. 

In this country the tendency has not gone so 
far. We shall speak of women and children in a 
moment; but for full-grown men there is no ef- 
fort, so far as I know, nor has any general statute 
yet been passed, which prescribes how long they 
shall work. 

The Legislature of Massachusetts passed a reso- 
lution this year instructing its Commissioners on 
Uniformity of Law to introduce a recommendation 
at the next meeting of the National Conference of 
such Commissions from all the States, to consider 
whether by voluntary action the legal hours of 
labor in the several States of the Union might not 
well be made the same. But it is doubtful whether 



1 8 LABOR IN ITS RELATIONS TO LAW 

this resolution was not meant primarily to apply 
only to the usual statute affecting the labor of 
women and children, or to the statute prescribing 
how long a day's labor shall be, in the absence of 
express contract. The nearest law passed by any 
State in this country to a general regulation of 
the hours of labor was that of the State of Ne- 
braska, passed in 1891, which provided that eight 
hours should constitute a legal day's labor for all 
classes of mechanics, servants, and laborers, except 
those engaged in domestic or agricultural labor. 
Even this statute did not prohibit contracts for a 
longer day, but required double rates for such 
overtime ; and the statute itself has been declared 
unconstitutional by the Supreme Court of Ne- 
braska in a decision rendered a few months ago. 

Constitutionality of such Laws. 

Whether such statutes impose such a limitation 
upon personal freedom as to be unconstitutional 
under the inherited principles of the Anglo-Saxon 
race, or even perhaps under our written constitu- 
tions, is one of the most interesting questions now 
in the public mind, which we shall consider more 
fully when we come to speak specifically of the 
labor contract itself. 

Exceptions. 

Going on now with our general view, the next 
thing to note is that we do find a number of statutes 



HISTORY OF THE LAW OF LABOR 19 

which prescribe what shall be the length of a day's 
labor in the absence of express contract to the 
contrary, and also the entering wedge of the at- 
tempt to regulate labor through principles of State 
socialism in limiting the time of labor done for 
the State, or for a town, or municipality, or any 
contractor of public work. Thus, in the absence 
of contract, eight States have limited the hours of 
labor to eight hours per day, and six to ten hours. 
The laws of Illinois also provide for an eight-hour 
day, but expressly state that overtime work for ex- 
tra compensation may be contracted for. In New 
Jersey a week's work may not exceed fifty-five 
hours. This is as far as any of our States have 
yet gone in the direction of limiting general labor 
of full-grown men ; but several States, and the 
United States law, limit hours of labor done for 
the State or on public work to eight hours, and 
Massachusetts and Texas to nine. 

Regulation of Wages. 

Xo regulation whatever as to price has yet been 
attempted in this country, or is attempted in mod- 
ern times in England, with the solitary exception 
that Massachusetts provides that cities shall pay 
laborers a rate not exceeding $2 a day ; and, 
as is doubtless familiar to you, many of our 
towns and cities fix a rate — usually $2 — by ordi- 
nance, that is, by voluntary municipal contract, 



20 LABOR IN ITS RELATIONS TO LAW 

not by general law. There is undoubtedly a 
strong tendency in this country to fix all public 
work at a rate somewhat higher than the market 
demands, usually $2 a day ; and in England 
to require all public employers to give what is 
called a living wage ; but so far the tendency has 
not become the fact. Indeed, the report of the 
last English Labor Commission shows that the em- 
ployees of public works are paid, if anything, 
rather less than the average rate outside, which 
difference, it is said, is made up to the workmen 
by greater certainty of employment. 

Women-and-Children Eight-hour Laws. 

When we come to women and children, we find 
a great difference. Undoubtedly, this distinction 
rests on the theory that both women and children 
are wards of the State, the old theory being that 
women were not fully citizens, and might be, 
therefore, the subject of special protection. Sub- 
stantially half the States in this country have a 
provision that women and children, in factories 
or workshops at least, may not be allowed to 
work more than eight hours a day, this being the 
law in Illinois and Wisconsin, or ten hours a day 
in New England, New York, and the Northern and 
Central States, or in any case more than forty- 
eight -or fifty-eight hours a week, respectively. 
This statute was sustained in Massachusetts some 






HISTORY OF THE LAW OF LABOR 21 

years ago on the express ground that it was a 
proper police regulation ; but probably really on 
the theory that I have adverted to, that women 
and children might constitutionally be protected 
in making their own contracts. In Illinois, on 
the other hand, within a few weeks, the law as to 
women has been declared wholly unconstitutional 
on the ground that the modern theory is that a 
woman is a citizen, and that as such she has the 
same right as a man has to make her own con- 
tracts. This is certainly the logical modern view, 
and it will be curious to see which view will gen- 
erally prevail throughout the United States. 

Unconstitutional in States where Women Vote. 

It is at least very clear that in those States 
which have adopted woman suffrage, there will be 
no longer any constitutional justification for thus 
artificially protecting woman from making such 
contract as she deems most advantageous to her- 
self. Clearly, to do so will be to put her at a 
disadvantage in industrial competition with men, 
which disadvantage, however slight in effect, will 
afford a pretext for retaining her present low rate 
of wages, or perhaps for insisting on making it 
lower still. Therefore, in woman -suffrage States, 
any limitation thus imposed on the hours of labor 
of women will have to be imposed also on men; 
and as our courts now stand, it is pretty clear that 



22 LABOR IN ITS RELATIONS TO LAW 

they will permit this, if at all, only in the case of 
labor employed by corporations ; and if this ex- 
ception were generally made, it would put corpo- 
rations at such a disadvantage that they would 
probably turn themselves into private trusts for 
the purpose of evading the law, and this could 
probably be easily done. We may, therefore, ex- 
pect a check by the courts to the recent move- 
ment for statute regulation of labor hours. 

As to Children. 

The labor of children is also covered by this 
statute, and further, it is common to provide that 
children between the ages of twelve and fourteen 
and eighteen shall not be employed in such a way 
as to wholly prevent or interfere with their com- 
mon-school education. Under the ages of eleven 
or twelve they may not usually be employed at all 
in factories, and in most of our States not at all 
in mines. The present state of English statute 
law is somewhat similar. A child between the 
age of fourteen and eighteen is there termed a 
' ' young person, ' ' and may be employed under 
certain restrictions, while a child — meaning a 
person under the age of fourteen — has to pass a 
certain standard of education ; and under the age 
of eleven no child may be employed in factories 
at all. It will be noted that all these acts con- 
cerning the labor of women and children com- 



' 



HISTORY OF THE LAW OF LABOR 23 

monly apply to factories and workshops, not al- 
ways to domestic labor, even that of sweat-shops, 
and not to simple domestic labor or agricultural 
labor at all. In fact, it may be noted here that 
agricultural labor is very generally unprotected by 
law in any respect whatever, just as its output is 
not protected by the tariff. 

Special Occupations. 

There are a few statutes in this country spe- 
cially regulating hours of labor in certain occu- 
pations, such as railroads, street railways, and sta- 
tionary engines ; but these are perhaps imposed 
as much for the protection of the public as for 
that of the laborer, and the hours are usually long, 
being commonly twelve hours a day upon rail- 
roads, and limiting the length of continuous runs 
at an even greater period of time, provided a 
night's rest is given between. For the safety of 
others, special restrictions are also imposed on the 
employment of children in certain employments, 
such as running elevators, or cleaning machinery, 
and children are very generally prohibited, in the 
interests of their own morals, from being employed 
in dramatic exhibitions, etc., under a certain age. 

Legislation for Women. 

special labor legislation for the protection of 
women, other than that concerning hours of labor, 



24 LABOR IN ITS RELATIONS TO LAW 

there is as yet very little. There is an almost 
universal statute that women in mills, offices, and 
shops shall be provided with seats. In California 
and Louisiana the employment of women was for- 
bidden in houses where liquor was sold at retail ; 
but the California court, following the modern 
view of women citizenship, declared this law un- 
constitutional. Illinois, California, and Washing- 
ton have adopted statutes, and the same thing is 
in the California constitution, that no person shall 
be precluded or debarred from any occupation, 
profession, or employment, except military, on 
account of sex ; but the Illinois statute adds that 
this shall not be construed as requiring any female 
to work on streets or to serve on juries. These 
statutes, however, merely enunciate the general 
law. So far as I know, there is no restriction 
upon women in any State of the Union going into 
any employment or avocation whatever, unless 
the employment be in the nature of a political 
office, such as justice of the peace or member of 
the bar ; and in many States the bar has already 
been thrown open to them. Upon this subject 
there is much cry and little wool. 

How far this universal employment of women 
in factories and workshops aw T ay from their homes 
is an unmixed good, may seriously be questioned. 
It is probably quite too late to alter it in the case 
of factories, at least until our economic condition 






HISTORY OF THE LAW OF LABOR 25 

becomes so much improved as to make it un- 
necessary ; but in England there is a strong feel- 
ing against it, as it tends to lower the wages of 
the men and make it necessary for all women to 
work. It is easy to see that in the case of mar- 
ried women, for instance, if none of them worked, 
none of them would have to ; but the moment 
one goes to the factory, the other wives have to 
do the same if their social condition is to remain 
equal to that of their neighbors. In the case of 
unmarried women, their competition is both more 
necessary for some and less necessary for others. 
Undoubtedly, unmarried women having no other 
means of support should be allowed perfect liberty 
of labor at any industry. But there is a large class 
of unmarried women, like the daughters of opera- 
tives, who have homes of their own, and simply 
work for the sake of spending-inoney. It is this 
class whose competition may be most dreaded by 
others. Women, too, have hitherto manifested 
much less ability in defending their rights, and 
much less tendency to join hands with trade- 
unions. In Connecticut, last year, a bill was actu- 
ally introduced forbidding married women to 
work in factories, and the English reports are full 
of arguments against it, drawn from the inferior 
condition of homes presided over by such women, 
and the failing health of children. It can hardly 
be that such a law as the Connecticut bill would 



26 LABOR IN ITS RELATIONS TO LAW 

be wise, as it would obviously put a premium on 
immorality by enabling a man and his mistress to 
earn double as much as a man and his wife. But 
the whole question of the effect upon the social or- 
der of the unification of the functions of men and 
women, economically, has not yet been seriously 
considered, much less proved. 

Times of Payment. 

As to the times of payment, many of our 
States have adopted laws requiring laborers to be 
paid weekly or fortnightly, though this statute is 
much more general in the case of corporations, 
for the reason that it is of doubtful constitution- 
ality as applied to private employers. Indeed, the 
Supreme Courts of Missouri and Arkansas have 
expressly so declared. The Supreme Court of 
Massachusetts, on the other hand, has just in- 
structed the Legislature that such a law would not 
be unconstitutional in that State, even although 
applied to private individuals. 

In a still greater number of States there is a 
law that labor can only be paid for in lawful 
money, or at least in checks or orders redeemable 
in lawful money, and not in truck or in orders 
upon companies' stores, etc.; and in some States 
it is made illegal for employers of labor to keep 



HISTORY OF THE LAW OF LABOR 27 

stores for the purpose of supplying their em- 
ployees, or at least to sell them goods at higher 
rates than to the general public, or to require 
them to trade at such stores. This Truck Act also 
finds its precedent in an English statute. 

Industrial Labor Specially Privileged. 

It will already have been noticed that indus- 
trial laborers as a class are specially protected by 
our law, for there is no statute limiting the time 
during which a farm-hand or servant is required 
to work, and few concerning mercantile employees 
and shop-girls. We must look fairly at what has 
been done, and must recognize that there is even 
danger, from the tendency to which I adverted at 
the beginning, that industrial laborers should 
come in this country to regard themselves as a 
class specially privileged. 

Labor Debts Preferred. 

And we now come to a body of statutes where 
this is even more evident. Debts for labor ser- 
3 are specially recognized and protected in 
all the States of the Union. Laborers commonly 
have a preferred claim upon the assets of an 
[vent corporation, or even of an insolvent in- 
dividual, or the insolvent estate of a person de- 
ed. By the statutes of some States the stock- 
holders of corporations are individually liable for 



28 LABOR IN ITS RELATIONS TO LAW 

all debts for labor done for the corporation of 
which they hold stock, and there is, as you know, 
a most elaborate body of laws giving mechanics 
and laborers liens on the product of their work. 
And, furthermore, this money due for wages or 
paid for wages is specially protected to the la- 
borer and his family in the laws of many States. 
It cannot be attached or held back by suit 
against the employer. Sometimes this is true, 
as by the constitution of Texas, to any amount ; 
but more usually the amount so protected to the 
laborer or his family is limited to one or two 
hundred dollars, or to wages owed for thirty, 
sixty, and ninety days. And by the constitution 
of Virginia, and the laws of Michigan, Kansas, 
and Nebraska, no property, although exempt upon 
legal proceedings for an ordinary debt, may be 
held by its owner as against a claim for labor or 
personal services. And in New York State no 
property is exempt from execution upon judg- 
ments obtained by any female employee or ser- 
vant, nor court fees required or stay of execu- 
tion granted. And the same principle has been 
adopted in Michigan, Iowa, and Virginia. 

A few new State constitutions have expressed, 
in more or less glittering generalities, a special 
claim also that labor has upon the law-making 
body of the State. Thus, by the constitutions of 
Pennsylvania, Texas, and Louisiana, the Legislature 



HISTORY OF THE LAW OF LABOR 29 

may not pass any local or special law regulating 
labor, trade, manufacturing, mining, or agriculture. 
By the constitution of Wyoming, the rights ot 
labor shall have just protection through laws cal- 
culated to secure to the laborer proper rewards 
for his services, and to promote the industrial 
welfare of the State. 

Political Privileges of Laborers. 

The political protection of the laborer is 
beginning to be seen to. Thus, in Minnesota, 
employers are forbidden to require as a condi- 
tion to employment the surrender of any right 
of citizenship, or, in Wyoming, to discharge 
candidates because of their nomination for an of- 
fice. In all the States the laws provide for giving 
time to employees to vote. In New York the 
employer may not use pay envelopes upon which 
is written or printed any political argument, and 
in all the States it is a criminal offence for a person 
to endeavor to influence a laborer's vote by threats 
of discharge or lower wages. Some of the States 
prohibit the employment of aliens upon public 
works, and refuse to enforce contracts made for 
alien labor in foreign countries. On the other 
hand, the Grand Army of the Republic is being 
made, in many States, a privileged class, being es- 
pecially exempted from all civil-service examina- 
tions, or even from other tests of fitness ; as in the 



30 LABOR IN ITS RELATIONS TO LAW 

State of Massachusetts, which has just passed the 
worst existing law on this subject over the veto 
of its governor. 

Relief .Funds. 

Some of the States are beginning to prohibit 
the institution by employers of charitable funds 
or benevolent societies, of which the employee is 
obliged to become a member. The elaborate re- 
lief system of the Chicago, Burlington & Quincy 
Railroad, which has been in successful operation 
for many years, and accumulated a relief fund 
running, I think, to more than a million of dol- 
lars, has almost been nullified by a court decision 
to that effect. When we consider that the great 
desire of English laborers is for insurance against 
accident by the employer, it would seem as if 
this position were rather extreme, although, even 
in England, it is admitted that what the employee 
wants is protection from injury, not compensa- 
tion, for the reason that compensation, when fur- 
nished, as it ultimately is, by funds of this sort, 
and still more when furnished by outside insur- 
ance companies, tends to make the employer 
careless both in the choice of his workmen and 
the maintenance of his machinery. In Tennes- 
see there is a law aimed against company doc- 
tors. 



HISTORY OF THE LAW OF LABOR 31 

Prison Labor. 

The tendency to prohibit all prison labor, or, at 
least, all prison labor which can possibly come 
into competition with outside labor, is familiar to 
all of us. Mr. Ruskin, it may be remembered, 
made a cardinal principle of his L T topia that all 
disagreeable, heavy, and dangerous work should be 
done by criminals, and we may think that this is 
another instance where the zeal of the labor leader 
has carried him too far. The Southern States 
very generally permit prison labor in important 
public works, on roads and canals. A condemned 
criminal is the only modern instance of the indus- 
trial slave, and remembering that the pyramids of 
Egypt were built by such labor, it does not seem 
as if our sentimental altruism should carry us so 
far as to object to the employment of our crimi- 
nals in healthy outside work, particularly such as, 
however valuable to the State, will not probably 
be built by private enterprise ; such work, for 
instance, as the Cape Cod Ship Canal. 

Labor Exempted from Trust Laws. 

But perhaps the most noteworthy instance of 
the special privilege granted laborers is that of the 
statute of Michigan passed in 1889 — a stringent 
law against trusts, which specially excepts all con- 
tracts and combinations relating to the services of 
laborers or artisans who are formed into societies 



32 LABOR IN ITS RELATIONS TO LAW 

or organizations for the benefit and protection of 
their members. In other words, you may have a 
trust in labor, or even, as it seems, in the product 
of labor, though a necessary of life, provided only 
it is formed by the laborer himself, even under a 
co-operative charter, and not by the capitalist. 

Factory Regulation in the United States. 

Our factory legislation is not yet as full and 
complete as that of England, though it may be 
observed that, owing to our written constitutions, 
our Legislatures are perhaps a degree more shy in 
imposing regulations and restrictions upon indi- 
vidual employers. We have, however, in the 
North, laws for the general inspection and regula- 
tion of factories against over-crowding, for pro- 
viding good air, freeing mill-rooms from dust or 
noxious vapors, requiring mechanical fans, fire- 
escapes, ventilators, mechanical belt-shifters, com- 
munication by bells and tubes between ordinary 
rooms and machinery rooms, requiring doors to 
open outward, elevator shafts to be fenced in, and 
so on through an endless number. There is one 
statute alone, in the State of Washington, which 
provides for the sobriety and capability of the op- 
eratives employed. Mines and railroads are also a 
subject of most elaborate regulation, and in the last 
two years, I am happy to say, a much more neg- 
lected matter has been taken up — that of sweatshops. 



HISTORY OF THE LAW OF LABOR 33 

Sweatshops. 

A sweatshop, in legal parlance, is a workroom 
either in one of the ordinary domestic rooms of a 
house or in a tenement not under the control of 
the person furnishing the employment. Here, of 
course, we strike again a constitutional objection, 
" that an Englishman's house is his castle ; ' ' and a 
New York law prohibiting, under certain condi- 
tions, the manufacture of cigars and confectionery 
in tenements has been declared unconstitutional 
by the Court of Appeals in that State. New 
York, New Jersey, Massachusetts, and Illinois 
have, however, passed statutes providing for the 
regulation and inspection of tenements where in- 
dustrial work is done, and I think we may say that 
there is little doubt that such legislation will ulti- 
mately be sustained under the doctrine of the 
police jurisdiction of the legislature, though it is 
possible that the New York statute went too far. 
Intelligence offices are also beginning to be regu- 
lated by statute, and even the amount of their 
charges limited. Generally, throughout the coun- 
try, the common law is changed by which employ- 
ers were not made liable for accidents resulting 
from the negligence of a fellow employee of the 
person injured, so that the distinct tendency is 
toward making each employer the insurer of all 
his workmen against any accident occurring on his 
premises, or to a person injured about his work. 
.3 



34 LABOR IN ITS RELATIONS TO LAW 

Knights of Labor, etc. 

Finally we may say that there are general stat- 
utes giving legal recognition to Knights of Labor, 
Farmers' Alliance, mutual or provident associa- 
tions, workingmen's aid societies, and labor or- 
ganizations generally. In fact, the Legislatures 
have gone as far as they can in inviting workmen 
to incorporate themselves into legally recognized 
trades-unions, and have given them full powers 
and all reasonable privilege in so doing. The 
great difficulty has been, however, to persuade the 
workmen to take advantage of these laws. 

Union Labor not to be Discharged. 

Statutes are being rapidly passed which for- 
bid employers from discharging employees for 
joining labor-unions, or from requiring as a con- 
dition of employment that they should not be 
members of such unions, or even from voluntarily 
awarding a preference in employment to non- 
union men. I must say, however, that I have not 
yet found any reported case where the constitu- 
tionality at least of this later prohibition has been 
fully argued and clearly maintained ; and in one 
State — Missouri — it has just been denied, and the 
law nullified. It is pretty clear that until we get 
into actual State socialism, the individual employer 
must be left free to employ whom he will. In 
other words, as long as the principle of labor em- 



HISTORY OF THE LAW OF LABOR 35 

ployment still remains a voluntary contract, it must 
be a contract and must be voluntary. Union 
labels, however, may be protected, and all other 
encouragement afforded to union men. There 
were cases, some years ago, where courts refused 
to protect the label of a trade-union on union- 
made goods, for the reason that, being employees, 
not manufacturers, they had no property right in 
the same ; and in consequence of these very cases 
the States have been rapidly passing statutes al- 
lowing union labels to be registered much as a 
patent or trade -mark is registered, and granting 
the same remedies for the use of the same by un- 
authorized parties, by injunction or suit for dam- 
ages. Such laws now exist in more than half the 
States. 

Strikes and Blacklists. 

Finally, there is quite a mass of new legislation 
aimed generally either in the direction of legaliz- 
ing strikes and trade combinations or in that of 
prohibiting combinations by employers, black- 
lists, and lockouts. These, however, will be best 
considered in a lecture specially devoted to them. 

Arbitration— Collective Bargaining. 

And there are, as you know, many important 
steps already made jn our legislation in the direc- 
tion of providing tribunals for conciliation and 



36 LABOR IN ITS RELATIONS TO LAW 






arbitration ; for realizing, in other words, that 
principle which I spoke of in the beginning as 
enunciated by the latest labor agitations in Eng- 
land, that the relation of employer and employee 
should cease to be that of individual and contract, 
but rather of the nature, if not of trade-partnership, 
at least of " collective bargaining " on both sides 
— a principle which will necessarily bring in an 
entirely new body of legal remedies for actions 
which contravene this modern notion of the soli- 
darity of labor interests. 

I think it will be admitted that our American 
democracies have already not shown themselves 
deaf to the demands and complaints of the indus- 
trial laborer. Certainly they have gone very far 
in the direction of removing abuse and of limiting 
and regulating the employer in the management 
of his business. All this may, however, be called 
negative achievement. I wish it were not possi- 
ble, as it is, to close this summary view of the 
present state of things by stating in so few words 
the sum of positive achievement in the direction 
either of improving the character and efficiency of 
the laborer or of furnishing new fields for the 
unemployed ; but when we say that our laws of 
apprenticeship have become a dead letter, and 
that provision is made in some half-dozen States 
for industrial training or the teaching of manual 
arts in the public schools, and, in New York, for 






HISTORY OF THE LAW OF LABOR 37 

free lectures to working people on actual science 
in the evenings, we have said about all I have 
gleaned from my reading the statutes. 

The Massachusetts Commission-on-Unemployed Bill 
for Labor Colony. 

The Massachusetts Commission on the Unem- 
ployed presented in their report this year an elabor- 
ate bill for the establishment of a labor test to dis- 
criminate ordinary vagrants from persons out of 
work, and for the establishment of a labor colony, to 
which the latter might be committed voluntarily or 
by order of court, if the occasion justified. The 
notion of the labor colony was of an institution not 
punitory or penal so that commitment to it would 
be attended with any disgrace, but which, having 
a large tract of unimproved land, should develop 
it agriculturally and industrially, and in so doing 
give any men out of work, who might otherwise be 
in danger of becoming tramps or criminals, such 
training in ordinary farming and the common in- 
dustrial trades as would enable them upon their 
discharge to seek skilled work with good prob- 
ability of obtaining it. This bill will not be acted 
upon by the Legislature until next year, if it will at 
all. It will be interesting to see whether it meets 
with opposition or help from the societies of or- 
ganized labor. 



38 LABOR IN ITS RELATIONS TO LAW 

Tendency of Legislation and Courts Favorable to Labor. 
It has been necessary to cover a large field in 
this lecture to give even an outline sketch of the 
history of English labor questions, as treated by 
Legislatures and the law up to date. We are now 
prepared to take up the more concrete subjects 
which are pressing for immediate solution, but I 
think we must admit after making this review 
that the industrial laborer to-day has succeeded in 
getting the ear of the public and of the Legisla- 
tures. He has a common and regrettable notion 
that the courts are against him. It is true that 
timid judges have sometimes flown to the Consti- 
tution, much as a child runs to its mother, and 
that angry judges have invoked the aid of armed 
deputies in enforcing equity processes, which other- 
wise would have been of no effect ; but in many 
cases the occasion justified it, and, at all events, 
the Legislatures have not been slow to help the 
cause of labor. While asking the earnest attention 
and sympathy of all thoughtful men, the industrial 
laborer must not be led to believe that he belongs 
to a privileged class, and certainly the statutes 
recently passed have gone far to justify such an 
impression in his mind. No other American 
citizen has his contracts regulated by the State, 
his times of payment fixed, his liberty to break 
them secured by law, his property freed from judg- 
ment, while upon the property of his debtors he 



HISTORY OF THE LAW OF LABOR 39 

is given a prior lien. In no other occupation 
than that of personal labor is a man left free to 
perform his own contracts or not, while the other 
side is held to them. No other class have their 
prosperity made specially the subject of legislative 
consideration, and their political power carefully 
guarded by express statute, and every opportunity 
given for its use. When he has a just grievance 
the public bears good-naturedly the inconvenience 
caused even by the most sudden and arbitrary 
action on his part. Let us recognize then that 
however evil were the conditions in the past, the 
law has done much for the laboring man to-day 
and is ready, backed by public sentiment, to do 
more, provided only that what he asks is limited 
to that which is reasonable, possible, and not in- 
consistent with our inherited liberties. 



II 

THE EMPLOYMENT CONTRACT 

Two Public Questions Concerning Labor Prominent 
To-day. 

Our last lecture attempted to give a bird's-eye 
view of the general subject of labor in its relation 
to law, sufficient to enable us now to pick out 
what are the important points, the key-positions, 
in the country we have surveyed ; and I may say 
at once that they appear to be two in number : 
First, the general question of the labor contract, 
and how far the law shall restrain, modify, or 
amend it ; second, the question of the acts and 
remedies permissible both to employers and em- 
ployees in their effort to better their position rela- 
tive to each other, and how far the State shall 
restrain, sanction, or enforce these. 

The Labor Contract, its History. 

I think to-day it will be quite enough if we 
endeavor to consider the labor contract. Now, 
first I wish to call your attention to the fact that 
it is now generally admitted by radicals as well as 



THE EMPLOYMENT CONTRACT 41 

conservatives, that the great story of the historical 
development of the labor question has been that 
from artificial control to freedom of contract. I 
do not wish to prejudice you with any notion that 
this freedom of contract is now, or in the future, 
necessarily, a thing to be preserved ; but it is 
necessary for us to note this great historical fact. 

State Control Asked. 

Many labor leaders are again asking for an effec- 
tual control of the labor contract or relation, and 
this not only as it was controlled in old times in 
the interest of the laborer, by the guilds, that is, 
not now by trades-unions or combined action 
alone, but by the direct legislation of the State. 
That is, they wish to substitute the will of a pre- 
sumable majority, or at least of a majority of 
those persons who for any year happen to be 
members of the State legislature, for the individ- 
ual judgment of the citizen. They wish to pro- 
hibit the right of the employee to make his own 
contract with the employer, and this not alone 
separately, but as applied to what we have called 
collective bargaining; that is, even to the con- 
tracts of all employers in a given trade with all 
the employees in such trade embodied in a labor 
union. I repeat that I do not now wish to con- 
sider whether this is wise or not, whether it is 
beneficial to the employee or not, whether on the 



42 LABOR IN ITS RELATIONS TO LAW 

whole it is for the greatest good of the greatest 
number or not ; but I do wish strongly to point 
out that this is a distinct change of sides and a 
surrender of the ground for which labor had been 
fighting from the earliest historic times down to 
a very few years ago. On this fact every one is 
agreed. It is as clearly set forth in the compila- 
tion of labor history made under the auspices of 
Mr. Powderly as it is in Adam Smith, as clearly in 
the history of Brentano of Leipsic — who represents 
the later German school, which objects to Adam 
Smith and the laissez-faire idea — as in Thorold 
Rogers. Brentano is most emphatic on this point, 
and his phrase for it is, " the growth of labor from 
the system of authority to the system of contract." 
Brentano himself is for the yet newer view, 
which he terms "association;" but the history 
of his own subject, as told by himself up to the 
date of his book, is simply the history of the suc- 
cessful effort of labor to be relieved of compulsion 
by law or by guild, and its arrival at the stage 
known to us in the nineteenth century, where — 
to quote Brentano' s words — "labor is regarded as 
a commodity to be sold, and the greatest possible 
liberty, both of individual bargaining and of 
combination, is given to the laborer in selling it." 
On August 4, 1789, as Brentano tells us, the 
abolition of the old guild control in France was 
welcomed by laborers with the wildest rejoicings 



THE EMPLOYMENT CONTRACT 43 

of the French Revolution, and " the glorious night 
of this 4th of August, under the shouts of ap- 
proval of the nation, made good the demands of 
the laboring classes for the freedom of individuals 
as against absolutism, and for the abstinence from 
every positive encroachment upon the economic 
life of a positive economic legislation." 

Turning again to England, the triumph is there 
further accentuated as the crowning principle of 
the Anglo-Saxon Constitution. I say Anglo- 
Saxon, because as both Blackstone and Benjamin 
Franklin have pointed out, it was this Constitution 
that we brought with us into this country as our 
most priceless heritage ; and Bushrod Washing- 
ton, one of our first great judges, asserted, that 
this, with other unwritten constitutional princi- 
ples, was so deep and so sacred as not to be preju- 
diced even by its omission from the written 
constitutions which our States and our national 
government had at that time adopted. Therefore, 
in England, and still more in America — for here, 
by the framework of our government, our legis- 
latures do not have the power of the British par- 
liament — this is not only a hard-won principle of 
the relations of laborer to employer, but a funda- 
mental principle of the relation of the freeman to 
the government. You will see, therefore, that 
while we still say nothing as to the expediency of 
starting again on the old Elizabethan method of 



44 LABOR IN ITS RELATIONS TO LAW 

regulating the labor contract by statute — only now 
avowedly in the interest of labor, while then it 
was virtually in the interest of capital — we do 
say a great deal upon the constitutionality and the 
novelty in our country and in our race of starting 
on this course. 

Meaning of the Constitution. 

Now I am very well aware of the savor of dry- 
ness and musty precedent which in every mind 
not a lawyer's hangs about the phrase " constitu- 
tionality or unconstitutionality." It is within a 
very few months that a friend with whom I was 
engaged in drafting some legislation in the inter- 
est of labor, a learned professor and a publicist as 
well, used the phrase, " but bother the Constitu- 
tion ! " more than half-a-dozen times in connec- 
tion with one brief statute that we were trying 
to draw. He said " every time you try to do 
something for labor or humanity you run up 
against the Constitution." Nevertheless, I would 
beg all people who are considering this question 
in the interest of labor ; in the interest of human- 
ity; at least, in the interest of a free humanity, to 
get a full understanding of what this dry phrase, 
"unconstitutional," may really mean. There is 
a notion lately prevalent, particularly among cer- 
tain newspapers and a minor order of politicians, 
that the will of the majority is in all things para- 



THE EMPLOYMENT CONTRACT 45 

mount ; that the object of a free government is 
simply to ascertain, register, and enforce the will 
of any majority at any time. Now, we must most 
earnestly deny this; deny it to the length of say- 
ing that such a government, far from being a free 
government, would only differ from a mob gov- 
ernment in a certain possible avoidance of blows 
and bloodshed ; and we would go so far as to as- 
sert the paradoxical opposite, namely, that the 
object of all free government, certainly of all con- 
stitutional free government, is not to enforce the 
will of the majority, but to protect the liber- 
ties of the minority ; the majority, except in a 
tyranny, enforce their will fast enough under any 
government — with their fists without a govern- 
ment. Such is the object of a constitution ; and 
that is what the phrase " constitutional " may 
mean. There is one greater interest than even 
labor or property ; a higher idea than daily meat 
and bread, and that is, freedom ; and the seem- 
ingly dry phrase " unconstitutional " can in most 
cases be translated into a synonym more easy of 
comprehension to all Americans, and that is, 
" destructive of liberty." 

" We live in a world of ideas," and if through 
the Hebrew race came a greater idea still, no one 
will contest that through our race has come the 
idea, liberty. Since the time of King John we 
have been fighting for this, and we have got it ; 



46 LABOR IN ITS RELATIONS TO LAW 

and this liberty includes, even by the dry intend- 
ment of law, the right of a man, first, to be free 
in his person ; second, the right to be free in his 
thoughts j and third, the right to be free in his 
actions. I have stated this somewhat in the order 
of its historical accomplishment. As we all know, 
first an Englishman's body became free ; then 
came religious liberty, and last of all, and pecu- 
liarly through the labor question, his freedom to 
work or not to work; his freedom to work for 
whom he would, and when and at what, and for 
what pay he would. 

Personal Liberty Includes Property. 

But one thing remains to be added to this be- 
fore we can come to a concrete treatment of our 
subject, and that is, that it very soon and very 
early became a part of a man's personal liberty 
that he could acquire, possess, and freely enjoy 
material possessions. Now, again, I am not tak- 
ing here an ethical ground in defence. For the 
moment, I am not defending the question of pri- 
vate property at all ; but I am merely pointing 
out that as a man's freedom of person only would 
be like that of the beast of the field, without a 
roof to creep to at night and protect his wife and 
children, and a store of food and fuel to feed and 
warm them with until he could acquire the next 
supply, this institution of property was at once the 



THE EMPLOYMENT CONTRACT 47 

necessary instrument, as it were, of personal free- 
dom itself. It is perfectly possible, of course, that 
these things can be provided by the State ; but 
property — appropriation by somebody to each per- 
son of certain commodities — is a necessary part of 
the liberty of a human being. The maxim, that 
an " Englishman's house is his castle," is but one 
expression ot this truth. Now we are still living 
under the institution of private, as distinguished 
from common, property, and private property is 
expressly made a corner-stone of every one of our 
State constitutions and of that of the National 
government itself. And, in theory, all constitu- 
tional liberties are equally important, for the rea- 
son that if you can destroy one, even though by a 
law, you can destroy them all. This is why I say 
that the object of a constitutional government is 
to protect minorities; that is, to protect a minor- 
ity, or even a single individual, in the enjoyment 
of any constitutional thing it was specified by his 
forefathers he should have when they entered into 
the compact which makes him a member of the 
government. Thus, while democratic government 
has, as one function, the registering of the will of 
the majority, constitutional government has as 
its special function the seeing to it that the major- 
ity does not transcend certain cardinal principles 
of freedom or policy which were specially ex- 
cepted out of its powers by the will of the people 



48 LABOR IN ITS RELATIONS TO LAW 

itself. Should the will of the people be really 
and permanently changed by such a decided ma- 
jority as to guarantee that the change will be per- 
manent and not a mere chance vote in a moment 
of excitement, the Constitution itself provides a 
method for registering such change. Therefore 
we approach this subject with the most distinct 
statement that the freedom of the individual, and 
freedom in dealing with his possessions, of which 
his own right to labor is as much one as his horse 
or his cow, is our greatest birthright, and one 
which has received the sanction of what is called 
the Constitution. 

Now, in considering these labor questions, par- 
ticularly in their relation to this principle, there 
are always two questions to be determined. First, 
is it expedient to do this thing by a law ? sec- 
ond, is it constitutional? If both, there can be 
no question ; but if expedient, and not constitu- 
tional, the clear answer we should give is that it 
should then be brought about by voluntary ac- 
tion, by united demand, by public sentiment, so 
that we may get the benefit of the change pro- 
posed without paying for it the dear price of los- 
ing, once and for all, all our constitutional liber- 
ties. I wish to make it clear that I believe our 
phrase, "constitutional," to embody one of the 
very highest ethical principles ; certainly so in 
relation to our people and our race. I deny most 



THE EMPLOYMENT CONTRACT 49 

strenuously that it is a dry phrase or a legal fig- 
ment. I say that whenever the word " constitu- 
tional " can fairly come in, we are treating with 
the deepest principles and the most ethical mo- 
tives. And one word more before we go into 
practical affairs. The difficulty in this question 
is based almost entirely on another and a peculiar 
point. There is, of course, the general difficulty 
that a concise expression of great human import 
necessarily cannot define its application ; when, 
for instance, we say that a man's property cannot 
be taken away without due process of law, there 
is at once the question whether the property of a 
man in his own labor comes under the general 
expression of property. 

Written or Unwritten Constitution. 

But I mean further than this. The constitution 
of England is avowedly unwritten, and if Webster 
and Judge Washington — who rendered almost the 
first decision on the subject — were right, we have 
not lost it by adopting our written constitutions. 
If, on the other hand, the view is correct that 
more recently has been expressed by the Supreme 
Court of Massachusetts, that we have no un- 
written or implied constitution, but that each 
man is protected and restrained only (1) by 
the exact words of his own State constitution, 
and (2; by the express provisions of the United 
4 



50 LABOR IN ITS RELATIONS TO LAW 

States Constitution, the uncertainty is still not 
quite removed, because there can hardly be a 
doubt that the concise expressions and general 
phrases employed in our brief State and National 
Constitution were written with conscious reference 
to all that body of unwritten constitutional law 
which they had brought with them from England 
and under which our citizens then lived ; and, 
therefore, the expressed restrictions and guaran- 
tees of our written Constitution, wherever the 
phrase fairly permits it or indicates it, are to be 
extended to include by implication the whole 
body of constitutional law which then fell natu- 
rally into the same subject matter. This is the 
sole cause of the apparent diversity of our courts 
on constitutional matters. There is never any 
doubt when a law or an act in question falls 
under the express written phrases ; but when 
the express written phrase is a general one, the 
question is whether it includes the particular. 
Whether the right to property includes property 
in a man's own labor is precisely an example of 
what I mean ; and examples of cases which, 
though clearly constitutional principles, are not 
embodied in our written Constitution, are not hard 
to find. Parliament in England is said to be 
supreme, but there is a very early case, which has 
been referred to in a thousand cases since, to the 
effect that even Parliament cannot make a man a 



THE EMPLOYMENT CONTRACT 51 

judge in his own case ; so even Parliament cannot 
arbitrarily take the property of one man and give 
it to another. Now, I will say frankly that I have 
very great doubt whether the omission of our 
State or National Constitution to express such 
principles as this has taken them out of our birth- 
right as Anglo-American freemen. 

So in the case of monopolies. In the leading 
case on this question, that of the Norwich Gas 
Light Company, arising in Connecticut in the year 
1856, the court expressly says that " although we 
have no direct constitutional provision against a 
monopoly, yet the whole theory of a free govern- 
ment is opposed to such grants, and it does not 
require even the aid which may be derived from the 
Bill of Rights, providing that no man or set of men 
are entitled to exclusive public emoluments or priv- 
ileges from the community, to render them void." 

Present Entire Freedom of Labor Contract. 

Coming now to a practical consideration of the 
labor contract, I hope I have shown that we 
start upon a simple and intelligible proposition 
that to-day the labor contract is perfectly free ; 
either side may make whatever contract he can 
get the other side to sign. Not only this, but 
either side may freely combine to demand any form 
of contract from the other side, as mere com- 
binations alone are now made perfectly legal. 



52 LABOR IN ITS RELATIONS TO LAW 

This is the condition of affairs we now are in, and 
this is the condition of affairs for which laborers 
have always for five hundred years contended for. 
It has been so fully and completely realized that 
it hardly appears in any of our laws or constitu- 
tions ; for, subject only to certain laws against 
combinations, against collective bargaining, which 
will be peculiarly the subject of my next lecture, 
this state of affairs had practically come about be- 
fore the adoption of our written constitutions. 
The men who formed our constitutions thought 
it no more necessary to provide that a man might 
make a legal contract about his own labor than 
they did about his property, and no more neces- 
sary to say it about both than they did to say, in 
terms, that there should be no taxation without 
representation. Only in view of late attempts to 
interfere with this contract have certain States 
very recently affirmed the principle. Thus, the 
statute of Louisiana of 1890 provides that the 
violation of labor contracts and wilful interfer- 
ence with such contracts by persons not parties 
thereto is forbidden. You will note that this 
important statute falls into two branches — one 
which asserts the legality of labor contracts spe- 
cially and forbids their violation, and one which 
forbids wilful interference with such contracts by 
persons not parties to them ; that is, intimidation. 
The first branch alone concerns the contract itself. 



THE EMPLOYMENT CONTRACT 53 

The California code says that the contract of em- 
ployment is a contract by which one, who is 
called the employer, engages another, who is called 
the employee, to do something for the benefit of 
another or a third person. You will observe that 
this is mere definition. The statute clearly does 
not consider it necessary to say in terms that such 
a contract is legal. Of course it is. Now, this 
fact that only one State — and that by a most re- 
cent statute — says anything about the general 
question of the labor contract, is the very fact 
which shows how completely such a contract had 
become, not only legal, but guaranteed by the 
Constitution. It did not require the support of 
any statute. The Louisiana statute was doubt- 
less passed by the Legislature in a moment of ap- 
prehension about first principles, caused by the 
general strike and disorder of the city of New 
Orleans in 1S89. The California statute is not so 
significant, because it is merely a part of Mr. 
David Dudley Field's code, and Mr. Field put 
everything in his code, almost to the alphabet and 
the tables of arithmetic. Our law-making, there- 
fore, bears out my statement that the right of 
contract in labor matters is recognized in this 
country as needing not the sanction of any stat- 
ute. If it be not involved in our written con- 
stitutions, it is, at least, a part of that unwritten 
•.itutional law of which I j-.st spoke. From 



54 LABOR IN ITS RELATIONS TO LAW 

the point of view of history, of law, and of ethics, 
this general principle is clearly right. The con- 
tract of labor should be free to both sides. 

Thus, in People v. Gillson (109 N. Y., 339), the 
court says: The term " liberty " as used in the 
Constitution is not dwarfed into mere freedom 
from physical restraint of the person of the citizen, 
as by incarceration, but is deemed to embrace the 
right of man to be free in the enjoyment of the 
faculties with which he has been endowed by his 
Creator, subject only to such restraints as are 
necessary for the common welfare. Liberty, in 
its broad sense, as understood in this country, 
means the right not only of freedom from servi- 
tude, imprisonment, or restraint, but the right of 
one to use his faculties in all lawful ways ; to live 
and work where he will ; to earn his livelihood in 
any lawful calling, and to pursue any lawful trade 
or avocation. 

In Braceville Coal Company v. The People 
(147 111., 71), the court says: 

" Property, in its broader sense, is not the 
physical thing which may be the subject of owner- 
ship, but is the right of dominion, possession, and 
power of disposition which may be acquired over 
it ; and the right of property, preserved by the 
Constitution, is the right not only to possess and 
enjoy it, but also to acquire it in any lawful mode, 
or by following any lawful industrial pursuit which 



THE EMPLOYMENT CONTRACT 55 

the citizen, in the exercise of the liberty guaran- 
teed, may choose to adopt. Labor is the pri- 
mary foundation of all wealth. The property 
which each one has in his own labor is the com- 
mon heritage, and, as an incident to the right to 
acquire other property, the liberty to enter into 
contracts by which labor may be employed in 
such way as the laborer shall deem most beneficial, 
and of others to employ such labor, is necessarily 
included in the constitutional guaranty." In the 
Frorer case we said : " The privilege of contract- 
ing is both a liberty and a property right, and if 
A is denied the right to contract and acquire 
property in the manner which he has hitherto en- 
joyed under the law, and which B, C, and D are 
still allowed by the law to enjoy, it is clear that he 
is deprived of both liberty and property to the ex- 
tent that he is thus denied the right to contract, 
and quoted with approval : ' The man or the 
class forbidden the acquisition or enjoyment of 
property in the manner permitted the community 
at large, would be deprived of liberty in particu- 
lars of primary importance to his or their pursuit 
of happiness. ' ; (Copley's Const. Lim.\ 393.) 

Intimidation. 

Asa direct corollary to this, the other branch of 
the Louisiana statute should also go without saying, 
as the law is thus in all our States. The contract 



56 LABOR IN ITS RELATIONS TO LAW 

being free to the parties, no third person should 
interfere with them, at least by any other influence 
than persuasion. This, I think, we will also take 
as axiomatic. But, unhappily, laborers, often 
uninstructed, and suffering perhaps under past 
oppression or present unfair treatment, have so 
often broken this principle, that here we find that 
States have found it necessary to legislate ; and so 
every New England State, New York, Indiana, 
Illinois, Wisconsin, Minnesota, Missouri, Oregon, 
the Dakotas, Montana, Georgia, Alabama, and 
Texas, have thought proper to legislate that it 
shall be a criminal offence for any person to pre- 
vent, or to seek to prevent, by means of threats, 
intimidation, or force, alone or in combination 
with others, any person from entering into or con- 
tinuing in the employment of any other person. 
Illinois, Oregon, the Dakotas, Montana, and 
Georgia have also extended this principle to the 
employer ; that is, it is criminal to intimidate or 
coerce any employer not to employ any other 
person whom he might otherwise be willing to 
employ. The other States have probably not 
covered the point because they did not deem the 
employer likely to be intimated in so doing. 

"Molesting." 

I will here pause to note that in England the 
same legislation has run its course, and the 






THE EMPLOYMENT CONTRACT 57 

phrase in their present statute now is, < k anyone 
who uses violence to, or intimidates, such per- 
son ; " and it is very significant that the majority 
of the Labor Commission of 1893 recommend an 
amendment to this wording, which is found in a 
statute of 1875, to read to follows : " any person 
who uses or threatens to use violence to such other 
person." You see that there is a most important 
distinction here. The word "intimidate" may 
well cover moral intimidation. The labor leaders 
are now contending to be permitted this, and to 
limit the prohibition to violence or the threat of 
violence ; that is, physical violence alone. I 
presume, however, this physical violence would 
apply to destruction of property as well as injury 
to person. This is a very significant change, be- 
cause it has arisen out of the great strikes in Eng- 
land and the law cases to which they gave rise. I 
shall have to go into this matter in some detail 
when we speak of boycotts, merely noting here that 
one of our leading decisions in the State of New 
York recognizes that there may be a moral intimi- 
dation — ridicule, for instance, or disorderly shout- 
ing, or objectionable epithets — which will be crim- 
inal, even when practised by one person alone. 
In a boycott, which is necessarily the act of more 
than one person, the law is much stricter. 

New York, Minnesota, Georgia, and Montana 
have been a shade more specific, and expressed 



58 LABOR IN ITS RELATIONS TO LAW 

that this intimidation shall not be either by in- 
terfering with tools or property or the use thereof. 

But we have not yet got to the end of this in- 
teresting legislation. In Connecticut, New York, 
and Montana the prohibition of the statute ex- 
tends to the preventing, by threats or force, any 
person from doing or not doing any act which 
such person has a legal right to do. Here, you 
will see, you have the broad human principle laid 
down, that I have a right as an individual to do 
an act not otherwise unlawful, and any other per- 
son shall be regarded as a criminal who attempts 
to prevent me. It sounds almost like a passage 
from Herbert Spencer ; but who, after this, can 
say there are no ethics in the law world ? 

Oregon and North Dakota, following the last 
English statute, specify more particularly against 
the compelling another " to alter his mode of 
carrying on business, or to limit or increase 
the number of persons employed by him, or 
their rate of wages or term of service." Mich- 
igan has a similar statute, and, finally, the brand- 
new constitution of North Dakota embodies this 
corner-stone as follows : " Every citizen of this 
State shall be free to obtain employment wher- 
ever possible, and every person maliciously inter- 
fering or hindering in any way any citizen from 
obtaining or enjoying employment from any oth- 
er person, shall be deemed guilty of a misde- 



THE EMPLOYMENT CONTRACT 59 

mean or." There you have the property right in 
labor laid down in an express constitution. 

No Limitation of Wages. 

So much for the general principle of the con- 
tract and its safeguards. Now for particulars and 
restrictions. In the first place as to wages : No 
Anglo-Saxon community, so far as I can find, in 
modern times, has prescribed or restricted the 
rate of wages paid. And by a decision of the 
Supreme Court of Massachusetts the ancient law 
regulating wages and apprentices is expressly de- 
clared to be no part of our common law. The 
constitution of Louisiana expressly says that the 
Legislature shall never fix the rate of wages. 

Perhaps the nearest effort to regulating wages 
was that law of the State of Massachusetts, passed 
in 1S92, which prohibited the deduction of wages 
of weavers when any special piece of work was 
imperfect, even to the point of worthlessness, and 
for the employer to impose a fine therefor. This 
being an attempt to make a man pay for what he 
had not got, the Supreme Court of Massachusetts 
itself (which perhaps goes as far as any court 
of the Union to-day in sustaining new laws, and 
most narrowly interprets old constitutional prin- 
ciples) declared this law unconstitutional. As a 
consequence of this, the next Legislature passed a 
law contenting themselves with ordering that 



60 LABOR IN ITS RELATIONS TO LAW 

where a deduction was made for imperfect work, 
the imperfection should be pointed out to the 
workmen at the time ; which is certainly a reason- 
able provision, so that no one has thought worth 
while to question it. 

There is one other statute somewhat similar to 
this, that in Ohio, passed in the same year, which 
prohibits any reduction or retaining of wages for 
materials, tools, or machinery destroyed or dam- 
aged. It may not, perhaps, be clear to others 
than lawyers why I think that this statute is per- 
fectly valid and the Massachusetts one not. But 
the reason is, that the Massachusetts statute defi- 
nitely took away a property right, while this one 
of Ohio merely provides that a separate and inde- 
pendent claim for damage to property cannot 1 e 
fixed by one party to the contract, and set off 
against a claim of the other party of a wholly dif- 
ferent nature, that is, a claim for or against a 
contract claim for wages. 

Anti-Truck Acts. 

There have been, however, many statutes copy- 
ing the precedent of the English Truck Act, passed 
about fifty years ago, requiring employees to be 
paid only in lawful money, or at least in checks 
which were expressly redeemable in lawful money. 
You are all aware how this act was passed, that it 
was levelled at the abuse which existed in keep- 



THE EMPLOYMENT CONTRACT 61 

ing company stores and forcing employees both 
to buy their own goods at possibly exorbitant 
prices of the employer and to remain in his debt 
permanently, so that they were practically under 
his control. Now, this is a very interesting ques- 
tion to debate on constitutional grounds, for it is 
surely a very good example of a law that we all 
believe in. It is clearly both wise and expedient, 
and one which removes great abuses we all know 
to have existed. Nevertheless I must point out 
that the courts of Pennsylvania and West Virginia, 
in most vigorous opinions, since approved in many 
of the Western States, have declared this law un- 
constitutional on the ground that a full-grown 
American citizen has a right voluntarily to make 
a contract to accept groceries instead of money if 
he chooses. The West Virginia judge thought 
that the right to contract in respect of property, 
including contracts for labor, was property pro- 
tected by the Constitution ; while the decision in 
Missouri went more particularly on the ground 
that this statute, which there applied only to min- 
ing laborers, was unconstitutional under that pro- 
vision of the Missouri constitution which forbids 
_ islation. There have been recent deci- 
sions in England, where the judges from the 
bench have stated that there is an unwritten prin- 
ciple, that an English citizen was free to make any 
contract, neither criminal nor immoral, and the 



62 LABOR IN ITS RELATIONS TO LAW 

courts would enforce it. Now, both these prin- 
ciples — that of freedom of contract and that deny- 
ing class legislation or legislation applying to 
particular persons only — are only limited, but they 
are limited, in our country, by one other doctrine 
which may be regarded as an unwritten constitu- 
tional exception to this constitutional doctrine, 
and that is known as the "police power." This 
is that doctrine by which the Legislature, that is, a 
majority of people acting through its representa- 
tives, can prohibit certain acts, or regulate certain 
private relations, for the purpose of securing the 
moral and physical health of the people. The 
Western court, in passing on this Anti-Truck Act, 
said : " Under pretence of this power the Legisla- 
ture cannot prohibit harmless acts which do not 
concern the health, safety, and welfare of society." 
I am willing to accept this definition ; but is this 
truck contract a harmless act ? Labor experience 
has shown it to be a very harmful act ; an act 
leading to great fraud and abuse. It seems to 
me, therefore, that these Southern and Western 
courts, despite their excellent motives and the 
stirring rhetoric in which they announce their 
decision, might well have considered this money- 
payment matter a fair one for police regulation ; 
particularly just because the need of the law was 
only for certain trades, as the mining industry, 
for instance, which is necessarily remote from 



THE EMPLOYMENT CONTRACT 65 

markets, and where many of the employees are an 
ignorant class, with little knowledge of affairs. 

Sailors have been the subject of similar protec- 
tion for the same reason from time immemorial. 
But we must hurry on. 

Weekly Payments. 

After rate and medium of payment, we natu- 
rally come to time of payment. Many of our 
States have recently been passing laws requiring 
employers of labor to pay wages weekly, fort- 
nightly, or monthly, and to pay in full the whole 
amount that may be due up to a few days before. 
Some of the States limit this restriction to corpo- 
ration employers, for the express object of meeting 
the constitutional objection. For our States can 
indirectly compel corporations to do a great many 
things which it might not be constitutional for 
them to require of individuals ; for the reason that 
all corporations are the creature of the State, and 
if they refuse to obey such orders, their charter is 
simply taken away. But some States have de- 
clared these weekly payment laws to be unconsti- 
tutional, even as to corporations ; and in every 
State where the question has arisen in a court of 
last resort, weekly payment laws applying to in- 
dividuals have been declared unconstitutional, 
with the exception only of Massachusetts. 



64 LABOR IN ITS RELATIONS TO LAW 

Such Laws Constitutional in Massachusetts. 

The Massachusetts constitution is the oldest 
and in some respects the most peculiar that we 
find in any State. In olden times the people of 
the colony of Massachusetts Bay and of Plymouth 
had made and submitted to a vast amount of 
sumptuary regulation of life. It had been pre- 
scribed by law what they should eat, drink, and 
wear, and how long they should work ; and it 
had also, of course, been prescribed by law what 
they should pay for their work. Now, there was 
nothing peculiar in this at that time, because this 
was done while the statutes of Elizabeth were 
still in force in England. Therefore, to my mind, 
it is no argument that because the primitive status 
of authority justified a thing in the seventeenth 
century, it should, with us, be cited as a consti- 
tutional precedent to justify the same in the nine- 
teenth. There is, however, one provision in that 
State constitution which is found in no other 
State, and it is upon this principle that its Su- 
preme Court based their late instruction to the 
the Legislature, declaring that a weekly payment 
law applying to all persons in that State would be 
legal. That provision is contained in the article 
of the Massachusetts constitution concerning the 
legislative branch of government, and says that 
" the Legislature may make all manner of whole- 
some and reasonable orders, laws and ordinances, 



THE EMPLOYMENT CONTRACT 65 

directions and instructions, either with penalties 
or without, as they shall judge to be tor the good 
and welfare of this country, so as the same be not 
repugnant or contrary to this constitution." You 
see that this wording raises the question whether 
it has not expressly abolished the unwritten con- 
stitution ; that is, whether the Massachusetts con- 
stitution has not expressly given its Legislature 
power to do anything not contrary to its exact 
words, although it would be unconstitutional at 
common law ; and the Supreme Court of Massa- 

setts at present rather inclines to this view. 
The exact point we are discussing seems unimpor- 
tant. If I hire a clerk by the month at a salary 

2 enough to make it quite easy for him to wait 
a month for his pay, and we both desire it, it cer- 
tainly seems an interference with our liberty that 
we should not make such a contract, though it 
could not be said that either side were deprived 
of an important liberty by the restriction. This, 
therefore, is an example of a case which, possibly 
expedient, certainly entirely unobjectionable, may 
nevertheless be unconstitutional ; and, if so, we 
should proceed cautiously. This, at least, in all 
States except Massachusetts. 

Expediency of Such Laws. 

v, there may be some practical justification 
for refusing to consider these laws constitutional. 
5 



66 LABOR IN ITS RELATIONS TO LAW 

In so holding, the Illinois court says: " It was 
suggested, in the interest of employees and em- 
ployers as well as in the public interest, that em- 
ployees consent to accept only so much of their 
wages as was actually necessary to their suste- 
nance, reserving payment of the balance until 
business should revive, and thus enable the fac- 
tories and workshops to be open and operated 
with less present expenditure of money. Public 
economists and leaders in the interests of labor 
suggested and advised this course. In this State 
and under this law no such contract could be 
made. The employee who sought to work for 
one of the corporations enumerated in the act 
would find himself incapable of contracting as all 
other laborers in the State might do. The cor- 
porations would be prohibited from entering into 
such a contract, and if they did so, the contract 
would be voidable at the will of the employee, 
and the employer subject to a penalty for making 
it. The employee would, therefore, be restricted 
from making such a contract as would insure to 
him support during the unsettled condition of 
affairs and the residue of his wages when the pro- 
duct of his labor could be sold. The employees 
would, by the act, be practically under guardian- 
ship ; their contracts voidable as if they were 
minors ; their right to freely contract for, and to 
receive the benefit of, their labor, as others might 



THE EMPLOYMENT CONTRACT 67 

do, denied them." These wise words will show 
how dangerous it is to regulate human action by 
law even when a Legislature may foresee nothing 
but good from the restriction. 

Screen Laws. 

Their are certain provisions as to the measuring 
of wages that have become the subject of much 
debate ; for instance, that miners should be paid 
for each ton of coal mined, and the tons weighed 
fairly under official inspection at the mine. Most 
States have declared this law unconstitutional. 
The Illinois decision says it is unconstitutional on 
the ground that the employer and employee have 
the clear right to contract for a wage at so much 
per day, if they choose, and not by the ton. And 
so far as the decisions rest on this principle they 
are unquestionable. Rut apparently some of them 
go further and set aside a law which merely pro- 
vides for the method of weighing the coal when 
the miner is paid for it by the ton. But this again 
would seem a fair subject of police regulation, and 
therefore constitutional enough. 

Substantially, therefore, we see that wages in 
modern times have not been regulated by law, 
nor, doubtless, is it expedient to do so ; and in our 
country most of the statutes which attempt to regu- 
late the time, method, and conditions of paying 
them have been declared to be such restrictions on 



68 LABOR IN ITS RELATIONS TO LAW 

personal liberty as to be unconstitutional when 
regarded as laws made by the State. Of course it 
is always to be borne in mind that this says nothing 
as to their expediency, or as to the propriety of 
labor unions or other combinations insisting on 
such regulations, and public sympathy and news- 
paper support going with them. 

Eight- and Ten-Hour Laws. 

The next question in importance to rate of 
wages is, of course, that of length of a day's work. 
This was substantially covered in my first lecture, 
and I will merely repeat the two principles, that 
on the one hand our constitution — that is our 
principles of liberty — demand that a man should 
be allowed to work as long as he likes ; and it is 
at least doubtful whether even from the most selfish 
point of view of the labor interest this principle is 
not desirable. It is the province of labor itself, 
through its unions, to prescribe what contract for 
length of time it shall make rather than to risk the 
cast-iron limitation of the State. From the Eng- 
lish Labor Report of 1893, it appears that many 
of the labor unions were opposed to the eight-hour 
law on the ground that it would not permit them 
to make up for the lean years by working over-time 
in the prosperous years. And, on the other hand, 
we have established the principle that the State 
may constitutionally and wisely regulate the hours 



THE EMPLOYMENT CONTRACT 69 

of persons not fully citizens, and so unable to pro- 
tect themselves ; that is, of women and children ; 
and the factory laws regulating only the hours of 
women and children have, since their adoption 
some fifty years ago, practically determine,! the 
length of the day for men as well. To this sym- 
pathetic determination there is, of course, no con- 
stitutional objection. But, again, in these years 
of woman suffrage, and under the modern view 
that a woman is as fully competent to protect her- 
self as a man is, it is extremely difficult, logically, 
to sustain the eight-hour law as to women ; and 
such a law has, in fact, been annulled in Illinois, 
and may be in other States, with the exception of 
Massachusetts, where it has been definitely sus- 
tained. Several cases where the laborer himself 
desired to work more than eight hours a day are 
now on their way up to the Supreme Court of the 
United States. Mr. Edward Atkinson has pro- 
posed to test the question in this way : Suppose 
half a dozen middle aged, intelligent, unmarried 
women, perfectly competent to look after them- 
selves, who are engaged in some skilled manufact- 
uring labor requiring only a little power, were to 
rent an electric wire, have it brought into their 
own dwelling, and proceed to weave and spin in 
their own house, although working under a fac- 
tory and getting pay from it ; suppose they chose 
to work fourteen hours a day, if they liked — as 



70 LABOR IN ITS RELATIONS TO LAW 

many a woman now does work about her ordinary 
domestic avocations — would the court sustain an 
officer coming in and arresting them as having 
committed a criminal offence in so doing ? And if 
the courts of Massachusetts would sustain such a 
conviction, would public sentiment do so? I con- 
fess I have great doubt. In New York, under a 
statute requiring the city of Buffalo to employ 
laborers only eight hours, and requiring con- 
tractors with that city to follow the same rule 
under penalty of a misdemeanor, the superintend- 
ent of a respectable corporation has been con- 
victed of a misdemeanor for allowing some of his 
men to work ten hours ; and the case is now on its 
way to the Supreme Court of the United States. 
On the other hand, there is a case in California 
directly counter to this. The city of Sacramento 
passed an ordinance that nobody working for the 
city should work more than eight hours or employ 
Chinese labor. The latter part was not material 
to the case, but a contractor who allowed his men 
to work more than eight hours was indicted in the 
same manner as in the New York case. And the 
court, with some indignation, held that such a 
law, while invalid even in a civil suit, was out- 
rageously so when it made a person not a city 
officer who violated it guilty of a criminal offence. 






THE EMPLOYMENT CONTRACT 71 

Labor not a " Commodity. " 

Thus we have attempted to show the historical 
growth and the present importance of the great 
principle that the labor contract, more than all 
contracts, should be free on both sides. The law- 
is certainly not slow in endeavoring to help the 
laborer where it can. In fact, I think we may 
fairly state that the industrial laborer at least is 
beginning to be a privileged class in the law. 
While all our constitutions demand that no man 

I or set of men should have special privileges from 
the community, I think you will agree with me 
that the many laws I have mentioned go quite a 
little way in giving to the industrial laborer, at 
least, advantages and protections which the ordi- 
nary citizen does not have. But I must hasten to 
add why I think there is no objection to this. The 
theory that labor is property, and that the laborer 
is like anybody else having property to sell, is mis- 
leading, unless we at the same time recognize that 
while he has goods to sell, they are goods of a very 
peculiar nature, being, to wit, himself, his time, 
and his energies. By the assumption of the case, 
he has no other wares, no other capital. By the 
assumption of the case, he must sell ; he cannot 
wait for a market. The seller of any other goods, 
by the very fact that he has them to sell, has some 
capital upon which he can live while he is try in- 
to make a satisfactorv contract. Take the sim- 



72 LABOR IN ITS RELATIONS TO LAW 

plest case of all for instance — that of a farm girl 
who goes to market to sell eggs ; if she cannot 
get any decent price for the eggs, she can at least 
live upon them while waiting for the market to 
improve ; but the seller of labor, and above all, 
of specialized factory labor, the weaver or the 
laster, who can turn his energies to nothing else, 
whose physique does not probably permit him to 
become an ordinary day-laborer, the creature of 
modern complex industrial conditions, is pecul- 
iarly at a disadvantage when his market fails 
him. Called into being by a complex social sys- 
tem, he has an ethical right to demand that the 
social system which has so narrowed his use shall 
provide him with reasonable opportunity to exer- 
cise it. That is the ethical ground upon which 
this favoring of the industrial laborer must be sus- 
tained, and the ground upon which we may hope 
not only that it will be sustained, but will be 
much increased, generally through the labor con- 
tract itself, by action of trades-unions and en- 
lightened employers, but sometimes, where it is 
necessary, by legislative act, provided only that 
such acts are not destructive of the principles of 
liberty under which we live. 

" The Contract System." 

There has been a tendency of late — it seems to 
me, a mistaken one — on the part of labor and its 






THE EMPLOYMENT CONTRACT 73 

sympathizers to object to any form oi express con- 
tract with the employers. It seems to me that this 

is a most lamentable step backward. A part of the 
best hope of the laborer lies that way. The most 
important practical case so far arising is that pro- 
vision, of common use by employers for a very 
long time, which seeks to protect them against a 
capricious or malignant desertion of the work on 
the part of the laborer, by the penalty clause, a 
week's or a month's notice, a forfeiture of wages. 
This reminds me that in speaking of the special 
privileges accorded the seller of labor by modern 
law and custom, I might have noted as perhaps 
the most important of all, that the labor contract 
is the only one which one party is practically free 
to break, and the other left without remedy. 
The seller of any other kind of goods must per- 
form his contract, and the buyer has an ample 
remedy for his failure to do so. A man who con- 
tracts to build a house cannot put up four walls, 
and then leave it without a roof and demand pro- 
portionate pay ; but a man who contracts to sell 
his labor, although it be for the completion of a 
complicated piece of goods requiring long time, 
may, individually, stop work at any time, and the 
employer has no remedy. Even when a special 
contract is made for a month or a year, the em- 
ployer has practically no remedy, for the laborer, 
having only labor, is not responsible as a capital- 



74 LABOR IN ITS RELATIONS TO LAW 

ist, and for all time our law has refused to enforce 
the specific performance of the labor contract. 

Only in two English-speaking communities, so 
far as I know, has there been any modern law 
aimed at giving the employer a remedy for viola- 
tion of the labor contract. First and most im- 
portant, is the recent English statute under which, 
in certain employments, there is a summary proc- 
ess for the sudden and unexcused refusal of a 
laborer to perform his work ; he may be brought 
before a magistrate and sentenced to a small fine 
and brief imprisonment. The other case is in 
South Carolina and Arkansas, where contracts for 
farm-labor may be put in writing and witnessed, 
stating the length of time or what particular crop 
the laborer is to raise and gather, and what and 
how he is to be paid, whether by money or shares 
in the crop, and, in such case, when a contract 
is thus formally made, if the laborer abandons the 
contract without good cause, in Arkansas he for- 
feits all his wages due ; in South Carolina he is 
guilty of a misdemeanor ; and so also in Louisi- 
ana, in case he has received goods, as, for instance, 
seeds or agricultural implements, upon faith of the 
contract. These are the only efforts at enforcing 
individual labor contracts by modern statute. Of 
course, when we come to a collective breach of 
contract done by combination or conspiracy, and 
particularly when done for the purpose of injuring 



THE EMPLOYMENT CONTRACT 75 

the employer, we get into the common law of 
strikes and boycotts, which is a very different 
thing. But individually, the contracting laborer 
is allowed to break his contract without a penalty ; 
and can never be forced to perform it, as all 
other contractors of any kind may be. 

It was, therefore, not only natural but reason- 
able that employers should require some notice, 
and in the case of industrial labor it has commonly 
been a modest demand — one week or two weeks. 
Nevertheless this notice has been much objected 
to : statutes have already been introduced in some 
States making it illegal, and the Knights of Labor 
generally are, I understand, in favor of prohibit- 
ing it. The State of Massachusetts, for instance, 
passed a law providing that where an employer 
required such notice from his employees, the em- 
ployees should be entitled to the same notice from 
the employer. This is certainly fair enough. But 
this year a statute was passed going a little further. 
Whereas the first law provided that the employer 
might discharge a laborer in case of a general 
strike, or for incapacity or misconduct, without 
giving the laborer such notice, a statute approved 
March 16th last has forbidden this, so that now 
a Massachusetts employer who requires a two 
weeks' notice of intention to leave from his em- 
ployees cannot discharge a laborer who, for instance, 
is drunk, or who wilfully destroys a machine, 



r . 



76 LABOR IN ITS RELATIONS TO LAW 

without paying him two weeks' wages in advance. 
Still, even this is a trifling matter ; and so far no 
State has passed a statute forbidding employers 
and employees to make any contract other than 
the ordinary indefinite verbal one. Nevertheless, 
a strong effort is being made to bring such a 
change about. In the Haverhill strike last win- 
ter, the avowed ground was the institution of the 
contract system, so called. Now, the contract 
made or imposed upon their employees by the 
Haverhill employers against whom the strike was 
called was a very bad one ; notably the so-called 
"apprentice contract," where the employers went 
back to the old dodge first introduced by em- 
ployers in the time of Queen Elizabeth, by which 
the bulk of their work was done for a mere pit- 
tance by a continual succession of so-called ap- 
prentices ; the only difference between Haverhill 
and Elizabethan England being that the Haver- 
hill contract did limit the apprentice employment 
and pay to three years, while under the statute of 
Elizabeth it could run to seven. This contract, I 
say, was a cleverly devised method of paying 
labor an unfair price under a misleading induce- 
ment that at some indefinite future time they 
would get a bonus, or, at least, be employed at a 
full rate. As a matter of fact, when that time 
came, as the employees claimed, they were com- 
monly discharged entirely. But granting that this 






THE EMPLOYMENT CONTRACT 77 

was a most iniquitous contract, I would urge that 
the Haverhill strikers and their sympathizers, and 
labor sympathizers in other cases, will make a 
great mistake if they attack the general use oi 
fair and clearly defined contracts rather than lim- 
iting their attack to the bad contract offered in any 
particular case. The question of strikes among 
railway men and telegraph operators, for instance, 
can hardly be solved without it. I believe that 
in a fair and clearly expressed contract, of which 
both sides shall have a copy, and with whose pro- 
visions they shall be familiar, lies one of the hopes 
of improving the present labor situation. The hi- 
de fin iteness of the labor contract has been a curse 
to both sides, and particularly to the employee. 
By all means, there should be mutuality ; and the 
trades-union should see to this. If they cannot 
it may be necessary to risk a statute requiring it. 
But, as in the recognition of the laborer as a citi- 
zen, free to contract, capable of acquiring con- 
tractual rights, has been his great emancipation 
of the past ; so, I believe, in the extension of the 
contract idea, in the recognition of the collective 
contract, combination bargaining on both sides, 
will be the great emancipation of the future. 



Ill 

STRIKES AND BOYCOTTS 

The Law of Conspiracy. 

The subject we come to to-day, to a student of 
ethics, is perhaps the most interesting in the 
whole domain of law, for it is the only branch of 
the law — certainly the only branch of civil law as 
distinct from criminal — where a higher principle 
is enforced than mere legality, where the law it- 
self undertakes to go into the higher domains of 
morality and ethical purpose. We shall find, even 
in the law of strikes, but clearly and avowedly 
when we come to the law of boycotts, that there 
are two great points in which this law differs from 
all other legal regulations. First, that it under- 
takes to judge men and their conduct as the re- 
cording angel might judge them, independent of 
any overt act ; and second, that it undertakes to 
judge not alone what men do, but their intention 
and purpose in doing it. Now, first I want to 
clear away a confusion which still exists in the 
books of most writers, but is an inheritance from 
that obsolete Elizabethan law of which I have 






STRIKES AND BOYCOTTS 79 



so often spoken. You will find still in many text- 
books, and in some cases, the assertion that there 
cannot be such a thing as a legal strike. In fact, 
the very latest published text-book on the subject 
— that of Cogley, published in Washington in only 
1893 — declares all strikes illegal, for the reason 
that they are necessarily done by prearrangement 
between many workmen to cease working simul- 
taneously for the express purpose of injuring the em- 
ployer. Now, this statement is not the law to-day, 
and it is not the law, because the last clause, that 
all strikes are for the express purpose of injuring 
the employer, is not true. The explanation of the 
survival of this notion is that under the statute of 
Elizabeth, so often quoted, and other old English 
statutes, it was illegal to pay wages beyond the 
amount limited by law, and as a consequence of 
this a combination to enforce such higher rate of 
wages was necessarily a combination with an ille- 
gal purpose. Upon this ground was the old Jour- 
neymen Tailors' case decided in England in 1721, 
which in effect made all strikes or labor unions to 
raise wages a conspiracy ; and that was the law in 
England down to the beginning of this century ; 
but it was never fully adopted in this country. 

Strikes not Illegal in the United States. 

The cases in New York, Pennsylvania, and 

Massachusetts decided early in this century 



8o 



LABOR IN ITS RELATIONS TO LAW 



show an ever bolder intention to distinguish the 
Journeymen Tailors' case ; so that it was soon es- 
tablished — certainly before the year 1830 — that a 
strike, even when it is a preconcerted agreement to 
leave employment, in the absence of any breach 
of express contract, is not a conspiracy which 
subjected the striker either to civil or criminal 
liability. Doubtless this tendency of our courts, 
while it rested morally upon general considera- 
tions of humanity, rested legally on the ground 
that they held the old English labor statutes never 
to have become part of the Common Law in this 
country. But whatever be the reason, such is the 
fact ; and a strike, merely as a strike, to raise 
wages without other motive, was never illegal in 
this country. And in England they soon arrived at 
the same result, but by another method. There an 
express statute had to be passed. There are sev- 
eral such statutes, but they may be said to date 
from the year 1824. In that year an act was 
passed providing that no workmen entering into 
a combination to advance wages or lessen work- 
ing time shall be subject to prosecution for con- 
spiracy, or any criminal punishment. Now, this 
act also provided that no combination to induce 
another to depart from his service before the time 
for which he is hired, or to induce him to refuse 
to enter into work, or to force the employer to 
carry on his business in a certain way, should be 



STRIKES AND BOYCOTTS 81 

an illegal conspiracy. This, as we shall see in a 
moment, was going too tar ; and the next year 
that part of the statute was repealed ; but the re- 
pealing statute still provided that it should not 
be penal for laborers to combine for the sole pur- 
pose of determining the rate of wages or the 
hours of work, or to enter into an agreement 
among themselves for the purpose of fixing such 
wages or hours ; and in the course of the next 
twenty years the legality of all trades-unions was 
fully established in England. As I said, they 
were, in my opinion, never illegal in this country. 

Intention the Test. 

But we shall be asked, if all strikes are legal, 
how is it then that even last year certain strikes 
were declared illegal, and certain people who 
ordered them or took part in them were actually 
punished? This brings us to that interesting law 
of conspiracy which I spoke of in the beginning ; 
and I first ask you to note, that when I said all 
strikes were legal, I did not say that a combina- 
tion not only or not chiefly to raise wages, but 
mainly to injure property, or some definite per- 
son, that is, what we now call a boycott, was 
legal. A naked boycott, a boycott having for its 
sole purpose the injury of some definite person or 
class of persons, or the destruction of some defi- 
nite property, has never been legal either in Eng- 
6 



82 LABOR IN ITS RELATIONS TO LAW 

land or America, and it is not legal to-day. This 
is one of the oldest doctrines in the law, dating 
back to 1 22 1, when the Abbot of Lilleshall com- 
plained that the bailiffs of Shrewsbury "did him 
many injuries against his liberty' 1 '' in that they 
caused proclamation in the town that none should 
sell to him or his men under penalty of ten shil- 
lings. Why is this ? Why is a combination to strike 
legal and a combination to boycott not ? The 
sole answer is that the intention is different. Here 
the law makes — in some cases the intention, in 
others the purpose — the sole distinction. There 
is no dry letter of law about this doctrine ; it 
punishes or inflicts with damages the offender as a 
parent might punish a child, not for what he did 
do, but for what he meant to do, and for the object 
he had in doing it. The law of conspiracy may be 
stated most concisely, that a criminal conspiracy, 
or a conspiracy which subjects the partaker either 
to criminal punishment or to damages to the person 
injured, is either (i) a combination to do an ille- 
gal or immoral thing, or to injure a definite person 
or class of persons, or the public generally, whether 
the means employed be legal or not, and although 
the thing sought or the act done would not, in the 
case of a single person, subject him to any liabil- 
ity ; or (2) it is a combination to do a perfectly 
legal thing by means which are, or any one of 
which is, criminal or illegal ; and in both cases 



ases 



STRIKES AND BOYCOTTS 83 

the thing punished is the combination to do to 
others as you would not have them do to you. and 
not any single act ; nor. indeed, does it need 
any act whatever to make the combining persons 
liable in damages, or even subject to the criminal 
law. You will see what broad ethical ground we 
have entered upon here. Here are two ethical 
points novel in the law: First, that it is enough 
if the object be immoral or wrong — it need not be 
illegal ; second, that the intention is made crimi- 
nal even without the act. As you well know, in 
the case of single persons the law does not go into 
intentions or evil dispositions at all, when no 
wrongful act has been done. More than this, 
it is the common reproach of the law that it takes 
no cognizance of acts which may be most wrong- 
ful, most immoral, when they do not come within 
the definite proscription of the law. An individ- 
ual by himself, as every melodrama tells us, may 
ruin another, may ruin him even with malice 
aforethought, without the laws interfering to pre- 
vent it in the least degree. He may spend his 
life in malevolence to some other person, and yet 
go unpunished on this earth. It is a stock re- 
proach of the law that it suffers this. But what 
I want to emphasize is the fact that in this doc- 
trine of conspiracy the law has undertaken to do all 
that the moralist, perhaps even all the sentimen- 
talist, would have it do. Now. before rejecting 



84 LABOR IN ITS RELATIONS TO LAW 

this vast body of law (the only province in which 
the law has endeavored to be simply moral, to 
look solely at the purpose, to judge and prevent 
those acts which, not technically unlawful, are yet 
unjust or ruinous to others), we should scrutinize 
most carefully the position the law takes, for if it 
be a necessity to do away with this high attitude, 
it is certainly a regrettable one. 

Morality of Trade Combinations Considered in the Law. 

The legal reasons advanced by judges and text- 
writers for thus going into the domain of morality 
are often different. Perhaps unnecessarily shy of 
seeming to enforce the golden rule, judges com- 
monly say, for instance, that the reason why the 
law will punish or restrain a combination of a 
number of people to injure a definite person in the 
absence of any overt act, is the very much greater 
power that a malevolent disposition has to hurt 
another, when it is shared by many people and 
artificially fomented among them. One manu- 
facturer may hate another personally ; may wish 
him ill in his business. Of that evil intent the 
law can take no cognizance ; but when a dozen 
other manufacturers, perhaps in the same trade, 
get together, and upon a common basis of hate for 
this manufacturer, and such malevolence is the real 
purpose of the combination, then, even though 
they have done nothing, the law says a combina- 



STRIKES AND BOYCOTTS 85 

tion of this kind gains such strength by the very 
tact of its being a combination that we will re- 
strain and punish it without any regard to what 
acts they may have committed. In the first 
branch of conspiracy, therefore, that kind of con- 
spiracy which seeks to attain an unlawful or 
immoral purpose or a definite injury to a third 
person, there is no question of acts at all ; only in 
the other branch of conspiracy, that to do a thing 
which may be legal and moral by illegal acts, 
does the question of the act become material ; and 
in that case it is held that the act of one member 
of the combination is the act of all, if it naturally 
followed from what they undertook to do. 

Boycotts. 

The general American law upon boycotts will 
be found stated in two cases, one in Vermont, the 
other in Ohio. Thus, in the case which arose in 
Ohio, a bricklayers' union declared a boycott 
against Parker Brothers, who were contracting 
bricklayers, first, to get paid a fine imposed upon 
one of their employees who was a member of the 
union, and, second, to reinstate one apprentice 
who had left them and make them discharge an- 
other. Parker Brothers refused. The union de- 
clared a boycott against them, and designated one 
of the defendants, P. H. McElroy, to enforce it, 
and paid him a salary of twenty-seven dollars a 



86 LABOR IN ITS RELATIONS TO LAW 

week and his expenses for so doing. McElroy 
continued in the work a number of months, and 
issued a circular to all material men, including 
Moors & Co., the plaintiffs, stating that Parker 
Brothers were discriminating against the union, 
and calling upon them to withdraw their patron- 
age from Parker Brothers, and announcing that 
any firm dealing in building materials who ig- 
nores this request is hereby notified that * i we 
will not work his material upon any building, 
nor for any contractor by whom we are em- 
ployed." This was signed "-By order Brick- 
layers' Union, No. i." The plaintiffs, who 
were a firm selling large quantities of lime to 
the building trade, received one of these circu- 
lars, and did stop sending lime to Parker Broth- 
ers by delivery, but Parker Brothers sent a team- 
ster who bought it for cash at the plain tiffs ' cars. 
McElroy, discovering this, sent to all the plain- 
tiffs' customers and probable customers a circular 
stating that members of the Bricklayers' Union 
will not use materials supplied by Moors & Co. 
and four other dealers, the effect of which circu- 
lar was to interfere with Moors & Co.'s business, 
and to cause a loss of customers who feared a 
similar fate. Judge Taft, in a most carefully 
written decision, held, in the first place, that the 
declarations made to Moors & Co. by those of 
their customers who withdrew their custom, made 



STRIKES AND BOYCOTTS 87 

at the time they did so, that it was for Tear of the 
boycott, were competent evidence in the case ; 
and then, the court went on to say : " Generally 
speaking, if in the exercise of the right by one to 
carry on his business or bestow his labor in his 
own way. another suffers a loss, he has no ground 
of action, there being no legal injury ; but in the 
exercise of common rights which result in a mu- 
tual interference and loss, such loss is a legal in- 
jury or not, according to the intent with which 
it has been caused, and the presence or absence 
of malice in the person causing it. Here the acts 
were done expressly to inflict loss upon the plain- 
tiffs, and such loss resulted. If they were mali- 
cious they were actionable. When intentional 
and wilful acts are committed, calculated to cause 
damage to a person in his lawful business, and 
done with the unlawful purpose of causing such 
damage without right or justifiable cause, and such 
actual damage does occur, the person injured may 
sue any person committing such act ; or in case 
there be a number combining for that purpose, 
the persons may be indicted for the conspiracy, 
even without showing any actual damage to the 
person or the persons against whom ic is aimed." 
But to my mind the most instructive case on 
the whole subject is the Vermont case of State v. 
Stewart, decided in 1887. This was an indict- 
ment for a conspiracy to hinder the Ryegate 



88 LABOR IN ITS RELATIONS TO LAW 

Granite Works from employing certain granite 
cutters, who as a matter of fact were not unionists, 
and to hinder and deter them from accepting em- 
ployment in the Ryegate Works, the real object 
being, by such injury to the company and threats 
or insult to the men, to deter them from working, 
and so compel it to conform to the regulations 
of the National Stone-cutters' Union. The court 
held that a conspiracy to interfere with the lawful 
prosecution of the industry of a third person, as 
well as to control the free use by workmen them- 
selves of their own labor for such persons as they 
pleased, was a criminal conspiracy both by the 
common law of England and that of Vermont, and 
said : " The boycott is not the remedy to adjust 
the differences between capital and labor/ ' 

Conflict of Opinions on Boycotting. 

This boycott question is the very latest devel- 
opment of labor law, and is not yet authoritatively 
settled, throughout this country at least. On the 
surface the decisions appear to conflict ; but I be- 
lieve that the statement I have made is an approx- 
imation of what the law is going to settle down to. 
Certainly, it is the only principle upon which any 
attempt can be made to reconcile the boycott 
cases. Thus, in a New York case, on the one 
hand, the keeper of a large saloon on Fourteenth 
Street was boycotted. Masses of workmen pa- 



STRIKES AND BOYCOTTS 89 

raded the street with bands and opprobrious epi- 
thets, which practically prevented the public 
from trading at his place. Judge Barrett decided 
that it was an illegal conspiracy by which both an 
unlawful injury to his property was effected, and 
the person taking part became liable to the crimi- 
nal law ; and they were convicted by a jury and 
sentenced. And Judge Barrett said that physical 
violence, or even the threat of physical violence, 
was not necessary ; that people in modern life 
might be deterred from doing business by other 
means, such as by insult or opprobrious epithets, 
and the fact that the weak or gentle might be de- 
terred from patronizing the shop was a sufficient 
menace to make it a criminal offence. Generally 
stated, however, there was nothing actually done 
in this case which the employees had not a perfect 
right to do. They had a perfect right to walk 
up and down the street in front of anybody's shop. 
Now, on the other hand, in a similar case which 
occurred in Boston only a few months ago, Judge 
Oliver Wendell Holmes held that such parading 
up and down in front of a shop for the purpose of 
inducing other laborers not to work for the objec- 
tionable employer was not a criminal conspir; 
and not even a conspiracy which gave the shop- 
keeper a right to a civil remedy or to an injunc- 
tion. At first sight, it might seem impossible to 
reconcile these two cases, which I have taken as 



90 LABOR IN ITS RELATIONS TO LAW 

samples ; but I believe they very neatly show just 
where the true law, and I may add true moral- 
ity, lies. In the New York case it became evi- 
dent in the whole trial that the main object of 
the combination, though it may have started in 
a labor dispute, was not to improve the condi- 
tion of the striking employees, get them better 
hours or anything of that sort ; by the time the 
case got into the courts, at least, it was evident 
that the main object of their combination was 
to injure that particular employer ; but in the 
Boston case the main object of the combination 
still was to get better wages, by refusing to work 
themselves and by persuading others not to go to 
work in their places ; and the court must have 
thought that this persuading was the act, not the 
purpose, of the combination. You will note that 
the acts done in both cases were precisely the 
same. They can only be distinguished on this 
moral ground ; but I believe that that may be a 
satisfactory and a sufficient reason for distinguish- 
ing them. In other words, the question in any 
case of boycott is, what do the persons com- 
bining really want? Do they want solely and 
simply by fair means to better their own con- 
dition? Or have they got into such a state of 
mind that they want maliciously to injure some 
particular employer, either their own or somebody 
else's ? 



STRIKES AND BOYCOTTS 91 

Illegal Acts and Illegal Purpose. 

I do not wish to confuse this statement, which 
I hope is a clear one, by any qualification ; but 
lest I may not appear fully to cover the subject, 
I must note that there is one other point which 
may tend to such confusion if I do not speak of it, 
and which, perhaps, may have had something to 
do with this New York case ; that is, the question 
of an illegal act. You will remember that what I 
call the second kind of conspiracy — by the way, I 
much prefer the phrase " illegal combination," for 
the very word " conspiracy " seems to imply 
something criminal — the second kind of illegal 
combination was that to accomplish a lawful pur- 
pose by acts avowedly illegal, or by means which 
would necessarily become illegal. That is, if in 
these cases the striking employees did have as a 
sole object the bettering of their own condition, 
and did not wish or intend to injure their em- 
ployer, nevertheless, if circumstances were such 
that they could only persuade other employees 
from going to work for him by intimidation, the 
combination would have been unlawful. 

And now we may, from these two cases, draw 
also another distinction which hel})S to make the 
subject clearer still, namely, that it is always ille- 
gal for persons to combine to prevent other per- 
- from trading with A B, but it is not always 
_il to combine for the purpose of persuading 



92 LABOR IN ITS RELATIONS TO LAW 

other laborers from working for A B. Now, this 
distinction is entirely inexplicable except upon 
the ground I have mentioned, that in the one 
case it is more clear than in the other that the in- 
tent of the persons combining is to injure A B. 
Of course, if actual intimidation is used in either 
case, that is an illegal act, and the conspiracy may 
therefore become illegal under what I have called 
the second ground, although, on the other hand, 
it is possible that any specific act of intimidation 
might be punishable without holding that such act 
was so necessarily a consequence of the whole 
combination as to make the combination itself 
illegal. 

In the same way, it makes a great difference 
whether the combination is made among em- 
ployees or outsiders and directed against their 
employer or others. Employees may freely or- 
ganize, adopt rules, impose penalties, or coerce 
themselves, but not third persons ; still less can 
third persons combine to coerce a person not em- 
ploying them. For in such case there can be no 
possible intentions of benefiting the conspirators, 
but at best a desire to help their fellow-workmen ; 
and the law does not yet recognize altruism to 
this extent. 

And just as men may not combine to do what 
they may lawfully do individually, they may not 
in many cases threaten to do what in doing were 






STRIKES AND BOYCOTTS 93 

lawful enough. A strike may be lawful, when 
the threat of striking is not. It has been decided 
that while considerable " picketing M is lawful, 
a threat to picket is not. So a man may do that 
himself which he may not persuade others to 
do. And as we have just seen, it may be lawful 
for individuals to persuade others not to work for 
A B, but not to combine with that purpose. 

The Moral Test of Trade Combination. 

So much for the law cf boycotting as it stands 
to-day. In determining whether any combina- 
tion is illegal conspiracy, you have to ask yourself, 
first. Does it try to accomplish an illegal thing? 
second, Does it try to accomplish an immoral 
thing? as if it seeks to injure some definite per- 
son, or class of persons, either by restricting him 
in the full use of his faculties, or by injuring or 
destroying any piece of property which he owns. 
And if it do none of these, you have still to ask 
yourself (although it is perhaps a combination 
for a perfectly legal thing), Was it contemplated, 
or does it necessarily imply, that the persons so 
combining in fact agreed to accomplish that end 
by unlawful means, as, for instance, by murder 
and destruction of property on the one hand, or 
by threats and intimidation on the other, or by 
fraud or any other thing which the laws forbid ? 



94 LABOR IN ITS RELATIONS TO LAW 

Sympathetic Boycotts. 

Now, you will note that this reasoning entirely 
destroys what is called the sympathetic boycott as 
a remedy which labor may legally use. I make 
no comment on this. I merely state the fact. 
When the employees of a railroad combine to 
prevent the owner of Pullman cars from having 
free use of his property, it is perfectly clear that 
they combine to injure that owner ; and as they 
have no contract relation with him at all, it is 
clear that their motive cannot be to get him to 
raise their own wages. Undoubtedly this is tak- 
ing away a strong weapon from combined labor, 
but the question is whether it is taking away not 
a strong weapon, but a weapon which labor has 
any right to use. If I am annoyed by an or- 
dinary trespass on my property, I may take the 
man by his neck and shoulders and put him out ; 
but I certainly may not explode a dynamite 
bomb under his feet. When we say that the em- 
ployees of the Pullman Car Company, for in- 
stance, had a perfect right not only to combine 
not to work themselves, but individually to per- 
suade all the workmen in America not to work, 
we have given them all the weapons of warfare 
that the law at present permits to them. The 
sympathetic boycott, therefore, is illegal. Now, 
how about the sympathetic strike? 



STRIKES AND BOYCOTTS 95 

Strikes may be Illegal. 

We have shown that the ordinary strike by 
itself has never been illegal in this country, and 
was probably only illegal a century ago in Eng- 
land on account of the peculiar interference of the 
government in labor questions. We shall find a 
singular repetition of this result of government 
interference when we come to consider our statutes 
against trusts; but for the present, and without 
such interference of peculiar statutes, a strike is 
perfectly legal: and this because the direct object 
of a strike is clearly to bring about the definite 
improvement of condition, or increase of wages, 
or decrease of working hours, for which the strike 
was instituted ; and although the result may be 
to injure the employer, yet that is regarded, first, 
as too remote for the law to take cognizance of, 
and, secondly, as the mere necessary consequence 
of the ordinary efforts of persons to better their 
own condition, just as competition in trade, even 
when a combined competition, is perfectly legal, 
although any one person in the same line of busi- 
ness be injured or ruined thereby. But now sup- 
pose the strike is done in such a peculiar way as 
to unnecessarily injure the employer, so that the 
intention to injure becomes manifest. A precon- 
certed strike is avowedly a combination. If the 
motive of personal injury is clear, does it thereby 
>me illegal? 






g6 LABOR IN ITS RELATIONS TO LAW 

You will find plenty of authority that it does. 
For instance, in Nebraska, which is not a State 
commonly supposed to be over-ready to favor capi- 
tal, there is a case where eighteen tailors employed 
by one employer, having all of them taken out 
pieces of cloth to be made into garments, the 
cloth being already cut, agreed to strike on a cer- 
tain March 31st, and return all their jobs unfin- 
ished, and in such condition that the cloth's value 
was destroyed^, and the employer not being able 
to get other labor, suffered money damage. The 
Nebraska court here held that although any la- 
borer had the right to leave his work when he 
choose, yet the preconcerted arrangement by all in 
this case bore such evidence of a specific attempt 
to injure the employer that an action for damages 
against the strikers would lie. So the United 
States courts have held that a strike so organized 
and managed as to appear to be expressly aimed 
at retarding the United States mail, that being an 
illegal purpose, became thereby an unlawful con- 
spiracy. Nevertheless, my opinion is, and the 
brief time remaining compels me to state in this 
bald way what merely is a personal opinion, that 
it is hopeless for the law to go into such a ques' 
tion of incidental motive when the strike is other- 
wise legal, and is conducted in an orderly way. 
It would be hopeless for the courts to organize a 
definite body of law which should state just when 



STRIKES AND BOYCOTTS 97 

it was fair for all the employees of a railroad or a 
mill to leave work. They have the undoubted 
common-law right to leave at any time, individ- 
ually or all together, and while it is possible that 
a mere malicious leaving of the work without any 
demand for higher wages or anything of that sort, 
could be called an unlawful combination, yet the 
moment any specific demand comes in, the courts 
must necessarily take that to be their main mo- 
tive. At the most, the question whether they left 
work in such a way as to indicate a malignant 
purpose, could only be left to a jury to determine 
the fact ; and there, as it seems to me, the ques- 
tion may safely rest. It is perfectly legal to pro- 
vide against such an abandonment of important 
occupations as to work great damage to the com- 
munity ; and many States have so provided ; that, 
for instance, in the case of engineers of railroad 
trains, they may not leave work until the day's 
run is completed, the cars left in the depot of 

leir destination, and the engine safely housed. 

This in order to prevent the starving of passengers 
— women and children — as has sometimes hap- 

ened by being left in the wilderness, possibly 
luring a snow-storm. But in a general way, and 
in the absence of such reasonable statute, I believe 

tiat the courts will finally settle down into the 
view not only that a strike is legal, but that being 
I it may be organized at any time the laborers 
7 



98 LABOR IN ITS RELATIONS TO LAW 

choose. And now as to the sympathetic strike. 
As in the case of the boycott, I am bound to say 
that as the law stands to-day the sympathetic 
strike is always illegal ; that is, a strike avowedly 
not to obtain higher wages for themselves, but for 
some other body of employees, possibly not even 
in the same employment, is not such a motive of 
benefiting themselves as will justify the combina- 
tion which has as a result and purpose the injury 
of their own employer, or the forcing him to boy- 
cott a third party. But even here, as I hold the 
future of labor law to lie largely in its recognition 
of what has been called collective bargaining, so 
I believe that a body of law will grow up which 
will recognize the strike in one part of a trade to 
benefit those employed in another part of a trade, 
or even a different trade entirely, as dictated by a 
motive which in the large sense is so clearly of 
benefit even to the striking laborers themselves in 
the long run, as to make the combination a justifi- 
able one ; particularly when conducted by a re- 
sponsible trades-union, including all parties on 
the labor side. The law, however, in this country 
at least, has not yet come to this large view. In 
England, which has been always some years in 
advance of us upon labor questions, there are 
statutes expressly recognizing it. 



STRIKES AND BOYCOTTS 99 

Illegal if by Persons Under Contract. 

Of course, if a strike amount to the breaking of 
a definite contract, that being illegal in itself and 
made expressly so by the statutes of many of our 
States, and by the English statute, it will render 
the whole thing illegal ; and this is undoubtedly 
the most logical reason that laborers have for ob- 
jecting to any definite contract-system which makes 
employment, instead of being from day to day, 
from week to week, from month to month, or even 
from quarter to quarter. For instance, there were 
threats some weeks ago of a strike on the West End 
Railway at Boston, at the time of the Christian 
Endeavor Convention, to be organized then for the 
very purpose of increasing the damage to the rail- 
way. Would such a strike have been legal? I 
think perfectly so ; but, undoubtedly, if all the em- 
ployees had been employed by contract requiring 
both sides to give thirty days' notice, the combi- 
nation to break this contract would have been il- 
legal. Nevertheless, I believe that labor should 
take a higher view and recognize that the advan- 
tages of a definite and fair contract far outweigh 
the value of this particular weapon, which, after 
all. is a somewhat vindictive one. I doubt very 
much if, in the long run, a strike with such a pur- 
pose of excessive or specific injury to the employer 
does any good to the employee. It leads to vin- 
dictive feeling on both sides, and probably the 



ioo LABOR IN ITS RELATIONS TO LAW 

employer will get even with the striking employees 
sooner or later. 

Persuading of Strikes. 

The leading case on strikes to-day is the North- 
ern Pacific Railroad case, which is most instruc- 
tive in showing the distinction I have just taken, 
for the reason that in the first case the lower court 
granted an injunction against the striking railway 
operatives, both from persuading others to strike, 
and from striking themselves in such a manner 
as to cripple the employer's business. But upon 
appeal, Judge Harlan of the Supreme Court of the 
United States rendered another opinion which an- 
nulled this part of the injunction (Arthur vs. 
Oakes, 63 F. R., 310). 

Union Labor. 

This brings us to the great question of trades- 
unions, and to the question of employing or not 
employing union labor. The subject of trades- 
unions themselves, I have reserved for the last lect- 
ure, as I believe them to be one of the remedies 
of the future; but the question of employers dis- 
charging men because they are members of a 
union, or of unions forcing employers to discharge 
men who are not members of a union, rather 
comes under the head of the boycott, which we 
are now considering. 

Trades-unions were, undoubtedly, at one time 



STRIKES AND BOYCOTTS 101 

held to be illegal in England ; probably never so 
in this country ; and now there are express stat- 
utes in nearly all the States authorizing and en- 
couraging their formation. In fact, the only diffi- 
culty with us, as in England, is to persuade the 
trades-unions to come under the law and make 
themselves legal corporations. The members pre- 
fer power without responsibility, and fear the 
liability to injunctions which an organization 
would give them. There have been many acts in 
England legalizing trades-unions, passed in the 
nineteenth century. I have only time to men- 
tion the act of 1871, now in force, because its 
provisions go into such details as to be very in- 
structive to any student of the labor question. 
The Trades-Union Act was passed in connection 
with the Criminal Law Amendment Act relating to 
intimidation, etc. That is, on the same day, Par- 
liament passed one act to show how far workmen, 
individually, might go in industrial warfare, and 
another stating clearly how far they could com- 
bine for the purpose. 

This act provided that any person who should 
(1) use violence to persons or property, (2) threat- 
en or intimidate any person in such manner as 
would justify a binding of him, to keep the peace, 
by a magistrate, (3) molest or obstruct any person 
in any of the following ways ; that is : 



102 LABOR IN ITS RELATIONS TO LAW 

(i) By persistently following him ; (2) by hid 
ing tools, clothes, or other property owned or used 
by him, or depriving him of, or hindering him 
in, the use thereof; (3) by watching or besetting 
the house or place where he lives or works, or 
the approach thereto, or following him in bands, 
of at least three persons, in a disorderly manner 
through any road, w r ith a view to coerce such per- 
son being a master, (1) to dismiss, or cease to 
employ, any workman ; (2) not to offer any em- 
ployment or work ; (3) to belong, or not to be- 
long, to any association or combination, tempo- 
rary or permanent ; (4) to pay any fine imposed 
by such association, etc.; (5) to alter the mode 
of carrying on his business, or the number or de- 
scription of any persons employed by him. Or, 
being a workman, to quit any employment, or re- 
turn work unfinished ; or, being a master or work- 
man, (1) to belong to, or not to belong to, any 
temporary or permanent association or combina- 
tion; (2) to pay any fine or penalty imposed 
thereby. 

The actions above defined are made criminal 
offences, provided that no person shall be liable to 
any punishment for doing, or conspiring to do, any 
act on the ground that such act restrains, or tends 
to restrain, the free course of trade, unless such act 
is one above specified, and done with the object of 
coercing as above mentioned. Offences under 






STRIKES AND BOYCOTTS 103 

this act are to be punished under the summary 
jurisdiction acts (11 and 12 Victoria, Chap. 43). 

And, on the same day was passed Chapter 31, 
the Trades- Union Act, which provided that the 
purposes of any trades-union shall not, by reason 
merely that they are in restraint of trade, be 
deemed unlawful so as to render any member li- 
able to criminal prosecution for conspiracy or oth- 
erwise, or so as to render void any agreement or 
trust, but also providing that nothing in this act 
should enable any court to entertain jurisdiction 
of legal proceedings instituted to enforce or recov- 
er damages for the breach of : 

(1) Agreements between members of a trades- 
union as such, concerning the conditions on 
which they should, or should not, sell goods, 
transact business, employ, or be employed ; or, 
(2) for the payment of any subscription or pen- 
alty to a trades-union ; or, (3) for the applica- 
tion of the funds of a trades-union to provide ben- 
efits to members, or to furnish contributions to 
outside laborers or employers, or to discharge any 
fine imposed by court ; or, (4) any agreement 
made between one trades-union and another ; or, 
(5) any bond to secure the performance of any of 
these four classes of agreements. But nothing in 
this section shall be deemed to constitute any 
of the above-mentioned agreements unlawful. 

The practical result of this will appear to be to 



104 LABOR IN ITS RELATIONS TO LAW 

allow trades-unions, and the members thereof, to 
make such agreements, but to leave them to their 
own remedies in case they are broken ; which, in- 
deed, are doubtless quite adequate. 

The rest of the act provides generally for the 
incorporation of trades-unions, their government, 
and their powers in holding property ; for their 
registration, rules, and annual reports. 

The English Statute. 

Now, the first thing that happened under this 
new act was the case of Queen vs. JBunn (12 Cox 
C. C, 316), which is the leading English au- 
thority on the whole subject, as well as the latest. 
This was a case where servants of a gas company, 
working under contract of service, agreed to- 
gether to quit the service of their employers, with- 
out notice and in breach of their contracts ; and, 
as the Masters and Servants Act of 1867 made the 
breaking of a definite contract by either side a 
minor penal offence, the court, in spite of the new 
statute, declared that, being a combination to bring 
about a breach of contract, the act did not apply. 
Thereupon the Act of 1875 (38 and 39 Vict., Ch. 
86), concerning conspiracy, was passed, which 
was the last word upon the subject in England, and 
was clearly meant to meet this case. It declares 
that an agreement or combination of two or more 
persons to do, or procure to be done, any act in 



STRIKES AND BOYCOTTS 105 

contemplation or furtherance of a trade dispute be- 
tween employers and workmen, shall not be in- 
dictable as a conspiracy, if such act committed by 
one person would not be punishable as a crime. 
In other words, the English Parliament have gone 
to the length of wiping out the whole doctrine of 
conspiracy, and the act is so radical that I do not 
see how (except in the cases specially excepted by 
the act itself, such as riot or unlawful assembly, 
or strikes by persons in breach of a contract of ser- 
vice where such breach involves probable injury 
to life or property) there can be any further ques- 
tion before the English courts of a criminal trial of 
any person in a dispute between labor and capital, 
when the person would not have been triable had 
there been no such thing as labor and capital in 
the world. Whether such a statute would be even 
constitutional in this country may be questionable. 
It is the clearest kind of class legislation. 

The Parnell Case. 

For instance, the English courts still hold, as 
they did in Mr. Parnell's case, that a combination 
to incite tenants not to pay rent is a conspiracy, 
and the indictment against Mr. Parnell defined 
the word " boycott " in this case, by which means 
the combination not to pay rent was brought about, 
in the following words : " Threatening to cut off 
from all social intercourse and communion, inter- 



io6 LABOR IN ITS RELATIONS TO LAW 

course and dealings in the way of business, and to 
shun as if affected with a malignant disease, and 
hold up to public hatred and contempt, and sub- 
ject to annoyance and injury and loss, in the pur- 
suit of his lawful occupation and industry, any 
tenant who paid his rent/' etc. Whether, by 
statute, you can exempt capitalists and laborers in 
an industrial dispute from liability for a thing 
which is criminal in a dispute between landlords 
and tenants, without, in this country, enacting- 
unconstitutional class legislation, may fairly be 
questioned. Under the decisions of the Western 
and Southern States you clearly cannot; and I 
may say that it is probable that only in Massa- 
chusetts and a few other States would such a statute 
as the English statute now be constitutional. 

American Statutes. 

We have, indeed, many statutes on the subject, 
but they do not go so far as this. Thus, in Penn- 
sylvania, any laborers acting either as individuals, 
or as members of a union, may refuse to work for 
any person whenever in their opinion the wages 
paid them are insufficient, or the treatment offen- 
sive, or when continued labor by them would be 
contrary to the rules of any union, and will not 
be subject to prosecution for criminal conspiracy 
in so doing. In New Jersey, persons lawfully and 
peaceably persuading, advising, or encouraging 



STRIKES AND BOYCOTTS 107 

other persons to enter into any combination for or 
against leaving, or entering into, the employment 
of other persons, are declared not guilty of criminal 
conspiracy. And the same law substantially ex- 
ists in Colorado. So, in New York and Minnesota, 
the orderly and peaceably assembling, or co-opera- 
tion, of persons employed in any calling, trade, or 
handicraft, for the purpose of obtaining an advance 
in the rate of wages, is not a conspiracy ; and Min- 
nesota has gone nearly the full length of the Eng- 
lish statute, except that they have avoided the ob- 
jection of class legislation, by providing that no 
agreement of anybody, except to commit a felony, 
arson, or burglary, amounts to a conspiracy, unless 
some act besides such agreement be done to effect 
this object by one of the parties. This, you will 
note, is not quite the length of the English stat- 
ute, because it does not wipe out the law of con- 
spiracy, provided only some overt act be com- 
mitted ; and this is the law of the United States 
act against trusts, which I am coming to presently. 
But the new codes of North Dakota and Oklahoma 
do expressly repeal the common law of conspiracy. 
Maryland, finally — and I should have noted this 
before — has adopted the full English statute by an 
act of 1888, and like it provides that nothing 
in the statute shall affect the law relating to riot, 
unlawful assembly, breach of the peace, or any 
offence against any person or against property ; 



108 LABOR IN ITS RELATIONS TO LAW 

but the exception is probably unimportant, as such 
would be the implication anyhow. So far as I 
know the constitutionality of this statute has not 
yet been decided in Maryland. 

But now, on the other hand, we find the follow- 
ing statutes in this country, which go the other 
way. Thus, by express act of Oregon and Florida, 
it is a criminal offence to conspire for the purpose 
of preventing any person from procuring work, or 
for the purpose of procuring the discharge of any 
workman, and, in like manner — these statutes, by 
the way, are universally fair to both sides — it is 
forbidden for the employer to attempt to prevent 
any person from obtaining employment whom he 
has discharged. In this connection I would add 
that many States already have adopted, and all 
the States are rapidly adopting, statutes against 
black-listing ; that is, against the attempt of an 
employer who has discharged a workman for a 
trade dispute, to prevent his getting work with any 
other employer. In Michigan, any two or more 
persons who shall combine for the purpose of wil- 
fully or maliciously injuring another in his reputa- 
tion, trade, or profession, by any means, or for the 
purpose of maliciously compelling another to do, 
or perform, any act against his will, or prevent 
him from doing any lawful act, are guilty of crim- 
inal conspiracy. This is an interesting statute, 
for, as you will see, it expressly re-enacts the 



STRIKES AND BOYCOTTS 109 

whole common law of conspiracy and constitu- 
tional right to freedom of contract. So, in Illi- 
nois, if any two or more persons combine for the 
purpose of depriving the possessor of property 
of its lawful use, or of preventing, by threats or 
any unlawful means, any person from being em- 
ployed by, or obtaining employment from, such 
possessor of property upon such terms as the party 
concerned may agree upon, the persons offending 
may be fined or sent to prison for six months ; 
and, also, if they conspire, or the officers of any so- 
ciety or corporation shall issue any circular as to 
the government of or instruction to its members, 
or any other persons or companies for the purpose 
of establishing a boycott or a black-list, or shall 
post or distribute any written notices with intent 
to injure the person, character, business, employ- 
ment, or property of another, or to do any illegal 
act in restraint of trade, or injurious to health, 
morals, or justice, the persons may be imprisonevl 
for five years and fined two thousand dollars. This 
statute, also, is aimed at the employer and laborer 
alike. So, in Texas, an unlawful assembly is de- 
fined to be the meeting of three or more persons 
with intent to aid each other by violence, or in any 
other manner, either to commit an offence or ille- 
gally to deprive any person of any right, or to dis- 
turb him in the enjoyment thereof, or to prevent 
his pursuing any labor, occupation, or employ- 



no LABOR IN ITS RELATIONS TO LAW 

ment, or intimidate any person from following his 
daily avocation, or to interfere in any manner 
with the labor or employment of another. This 
statute is broad enough certainly, and it is inter- 
esting as coming from the State of Texas. There 
are similar statutes in Georgia and Tennessee, the 
latter being expressly aimed at the threatening to 
discharge any employee for trading, or not trad- 
ing, with any particular merchant or person ; and 
that of Georgia specially prohibiting the hinder- 
ing any person from taking an apprentice to learn 
a trade ; and, finally, the Legislature of Louisiana, 
by resolution, July 12, 1894, made a kind of pro- 
nunciamento condemning the efforts of foreign 
emissaries to disturb the public peace by foment- 
ing discord between employers and employees at 
a time " when there is no cause for discontent and 
no grievances to be redressed," and commended 
the railroad operatives of the State for repulsing 
the overtures of such agitators and refusing to join 
in the Chicago strike. 

So much for the general view our legislatures 
are taking of boycotts ; and, further, as to the spe- 
cific acts declared illegal, we must note that Rhode 
Island and Maine forbid the wilfully obstructing 
the use of the property of another, or obstructing 
another in the prosecution of his lawful business or 
pursuits. Connecticut forbids the persistently fol- 
lowing a person in a disorderly manner, or the 



STRIKES AND BOYCOTTS in 

threatening to injure his property, with intent to 
intimidate ; while New Hampshire makes it illegal 
to insult or call offensive names to persons pass- 
ing to, from, or about their lawful employment or 
business. 

Lock-outs. 

The lock-out is the obverse of the strike, and 
both are legal ; the black-list is the obverse of the 
boycott, and both are illegal. Trades-unions and 
combinations of employers or employees are also 
legal, and become illegal only when falling under 
the prohibition of such statutes as I have read, or 
when aimed at the injury of the public, or a specif- 
ic person, or class of persons, other than the party 
to the dispute, or at the party to the dispute him- 
self when the immediate intent is to injure, even 
though the ultimate motive be to benefit the mem- 
bers of the combination. Such is the American 
law of the strike and boycott as it exists to-day. 
It is a law essentially moral. If those of you who 
are laborers feel any doubt as to whether ever 
any proposed action of your men falls under the 
above definition so as to be illegal, the best answer 
I can give is, Ask your consciences. So stands 
the law. 

Discharge of Union Men. 

We have two most interesting points left to dis- 
cuss — the one, that of the employment of union 



112 LABOR IN ITS RELATIONS TO LAW 

men already mentioned, the other that of the em- 
ployment of Pinkerton men, or other mercenaries, 
to protect the employer or his property. As to 
the first, I think I have already said that there are 
in many States statutes forbidding the employer 
to refuse to employ union men. Are such statutes 
constitutional ? I can only tell you that a minor 
court in Ohio has held they are, while the Supreme 
Court of the State of Missouri, in a decision filed 
only on the 1 8th of last June, has squarely declared 
they are not. The Ohio case is probably of little au- 
thority. An inferior court rarely declares a law un- 
constitutional, and the judge gives no reasons ; but 
the Missouri case is well considered and of great au- 
thority. And, in connection with this, the Circuit 
Court of the United States in the Reading Rail- 
road case, where the question came up whether the 
receiver of a Federal court had the right to en- 
force a rule requiring that only non-union men 
should be employed, although the then Attorney- 
General of the United States, Mr. Olney, wrote a 
letter, stating the view of the legal department of the 
government, in whose charge the Reading Railroad 
then was, the Court refused to annul the regulation 
discriminating against union men. There the 
matter rests. The statute exists in Massachusetts, 
but has, I believe, not yet been passed on there 
by the Supreme Court. It certainly would seem 
that the Missouri court was right, and that if em- 



STRIKES AND BOYCOTTS 113 

plovers of labor are to come to employ only mem- 
bers of trades-unions, it would be better and more 
in consonance with the principles of a free govern- 
ment to them, to be persuaded, not coerced, by 
the trades-unions themselves, rather than have the 
government undertake it by law. The fact that 
coercion is illegal is just why the union want a stat- 
ute. But if laborers are willing individually to leave 
work when non-union men are employed, they 
will soon get their wish. Where, however, a la- 
borer is under contract, it is of course constitutional 
for a statute to forbid the employer from discharg- 
ing him because he joins a labor-union, and the 
courts would, doubtless, hold that this was not suffi- 
cient ground of discharge in the absence of any 
statute. This, therefore, is a case where we begin 
to see the advantages of a definite contract to the 
laborer himself. 

The Future of the Boycott. 

Closing this subject, I have reserved one most 
interesting case for the last, and a case which, 
though decided in that instance in favor of the 
employer, holds open, as I believe, a new pros- 
pect of legal remedy to the laborer. The case is 
that of Cote vs. Murphy, decided in Pennsylvania 
in 1893. This was a case where the workmen 
.red in building-trades had entered into a law- 
ful combination to advance wages by reducing the 
8 



114 LABOR IN ITS RELATIONS TO LAW 

hours of labor. Lawful, that is, not only as I be- 
lieve, by the common law, but by that statute of 
Pennsylvania to which I have referred. The de- 
fendants were members of an association of em- 
ployers which, by a combination not so made law- 
ful by the statute, because it was a combination of 
employers, agreed among themselves not to sell 
material to contractors who conceded the advance 
of wages, and induced other dealers not to furnish 
such contractors with materials. A certain builder 
— that is, a capitalist who sold materials to the 
employers of labor — who had met the demands of 
the strikers, brought suit against the combining 
employers for refusing to sell him material, so that 
he was not able to procure all the building mate- 
rial he desired. Here was a case where there was 
a combination of laborers, legal by statute, a com- 
bination of employers, not legal by statute, and a 
capitalist suing the employers' combination be- 
cause they boycotted him for being in league with 
the striking laborers. The court held, in a most 
elaborate opinion, first, that they would not de- 
cide whether the Pennsylvania statute exempting 
employees from the penalties of unlawful combi- 
nation was unconstitutional as being class legisla- 
tion, or whether the scope of the statute should be 
so enlarged by its express words as to include with- 
in its protection all those interested in the same 
subject of legislation, that is, employers as well as 



STRIKES AND BOYCOTTS 115 

laborers. They so found it unnecessary to pass on 
the constitutionality of the statute, because they 
said the strikers having combined against the 
employers, the employers had a legal right to com- 
bine to resist them ; that the elements of an un- 
lawful combination, the intent to restrain trade 
for greed of profit to themselves, or the intent to 
do harm toward the strikers specifically, were ab- 
sent, but the combination of employers was merely 
done to resist a combination of employees, and 
therefore the plaintiff could not recover for being 
boycotted. 

Now, suppose we turn this reasoning the other 
way. Suppose all employers combine to regulate 
the prices of wages. Suppose, then, all their em- 
ployees combine against such employers ; then, un- 
der the decision of this Pennsylvania case, you 
will have a justification of their action, which may 
even go to the length of sustaining the sympa- 
thetic boycott. At all events it will establish as 
a legal principle that principle of collective bar- 
gaining between associations legally organized and 
mally responsible on both sides, which, as 1 
believe, holds the future of the peace of labor. 

Pinkerton Men. 

I find I have forgotten the Pinkerton men. 
Well, a few States have begun to pass laws making 
their employment a penal offence ; but a man has 



Il6 LABOR IN ITS RELATIONS TO LAW 

a constitutional right to protect his own property. 
Has he not a constitutional right to pay others to 
do so ? Remember, he runs great risks in doing 
so, for the moment any one of his Pinkerton men 
transgresses his rights of mere self-defence, every 
employer may become liable for damages, or even 
criminally. 

The two statutes so far passed against them are 
in Missouri and Wyoming. The Missouri statute 
declares it unlawful for any person, etc., to bring, 
or import, into the State any person or body of 
persons for the purpose of discharging the duties 
usually devolving upon police officers or deputy- 
sheriffs in the protection of property, and no sher- 
iff shall appoint a deputy who is not a bona-fide 
resident of this State. 

Now, there is no constitutional objection to this 
statute, except that which arises from the general 
rights of United States citizens. The prohibition, 
that is, is not against employing Pinkerton men, 
but against employing Pinkerton men who are 
not citizens of Missouri. 

The constitution of Wyoming provides that no 
armed force or detective agency, or body of men, 
shall ever be brought into the State for the sup- 
pression of domestic violence, except upon the ap- 
plication of the Legislature, or the executive when 
the Legislature cannot be convened. It does not 
say who is not to bring them in, and by its terms 



STRIKES AND BOYCOTTS 117 

would seem to apply even to the national govern- 
ment. If so, it is in conflict with the Federal 
Constitution ; it would have precluded President 
Cleveland's action in the Chicago riots. The 
employment of Pinkerton men is, doubtless, a 
great evil, and has seemed to many students of 
the American system to be the most sinister 
development that has happened in recent years 
of the republic. But the remedy would seem 
rather to make their employment unnecessary, 
by the States themselves protecting all classes of 
persons in the enjoyment of their constitutional 
rights, a republican government, and the law of 
the land. 



IV 

FORECAST OF THE FUTURE 

We may now come to consider the future of the 
labor relation, the remedies and resources of both 
sides, but particularly of labor, in what has been 
called the warfare between labor and capital, or in 
bettering its condition without warfare. The 
latter is the more congenial view of the subject, 
for, as one of the objects of all civilized govern- 
ment is to prevent warfare and violence, so we 
may hope that the object of a higher civilization 
will be to prevent even that kind of warfare which 
consists in opposition and animosity as well as 
physical violence. 

Labor Injunctions. 

The side adverse to labor we may consider very 
briefly. The most notable development of recent 
years is the tendency, both on the part of the 
public and employers, to resort to the peculiar 
process of courts of equity to enforce what they 
deem proper conduct on the part of the employees. 
I wish I had time to go into this matter here at 






FORECAST OF THE FUTURE 119 

length. 1 The subject may be summarized in the 
following statements : Our courts of equity to- 
day represent the old power of the king in compel- 
ling the peace of the realm, and in ordering his 
subjects to do what the chancellor deemed the 
right thing among themselves. Law, as distin- 
guished from equity, will never interfere among 
individuals or even on behalf of the State, to en- 
force a contract, to make a man, or set of men, 
do anything, and the peculiar power of proceeding 
in equity rests largely on the fact that the chancel- 
lor could order people not only to keep the peace 
and abstain from violence, but to perform any 
contract or any obligation which the laws of the 
realm imposed either as toward other subjects or 
toward the sovereign. This power of enforcing 
action, what we call specific performance in the 
law, is a very great one. It is made effectual by 
what is called process of contempt ; that is, any 
person failing to perform the order of the court of 
chancery could be summarily imprisoned by order 
of the judge without jury trial, and without indict- 
ment in ordinary form, until such time as he 
actually did what the court required him to do. 

Recent Extension of Court Interference. 

Now, this special subject of the courts of equity 

has received a great extension in this country in 

1 See Political Science Quarterly, June, 1895 : " The 
Modern Use of Injunctions," by F. J. Stimson. 



i2o LABOR IN ITS RELATIONS TO LAW 

the last few years, and that in a very peculiar way ; 
and it is another example of the danger of passing 
extraordinary laws which interfere in an unusual 
way with the bills of rights; for, in old times, 
the English chancellor, who was the king's 
right-hand executive officer (and courts of equity 
and courts of chancery are, as you understand, 
the same thing), in the time of great disorder 
which ensued upon the early civil wars in Eng- 
land, would interfere to protect private citizens 
against oppression, to protect the weaker side 
against violence, and to compel all subjects to pre- 
serve the peace of the kingdom. He would, for 
instance, order people, against whom the writ was 
claimed, not to commit riots or destruction of 
property, nor to commit personal injuries, or even 
crimes, and this summary jurisdiction, say the old 
writers, was in those days necessary to the peace 
of the realm. But in so far as the jurisdiction 
went to prohibit criminal offences and punish 
offenders summarily by the order of the chancellor, 
it was always extraordinary ; shared also by the 
notorious court of Star Chamber, it led to great 
abuses, as by it obnoxious persons, or persons out 
of favor with the ruling party, could be arrested, 
tried, and punished, without any of the ordinary 
safe-guards of warrant, arrest, indictment, jury trial, 
obtaining evidence, and fixed rules of punishment 
which the English Constitution required. There- 



FORECAST OF THE FUTURE 121 

fore, this criminal jurisdiction of the court of 
chancery fell into disfavor, and, finally, into disuse. 
It was entirely gone by the time of the Revolution, 
if not by the time of Queen Elizabeth, and has 
never, in England, been revived since. The only 
part of the old equity jurisdiction which was left 
was that concerning, specifically, property rights ; 
that is, where an injury to property was appre- 
hended, for which a suit at law for damages would 
be no remedy, or where a man refused to perform 
a property contract for breach of which the other 
party had no equity remedy by damages ; in these 
cases only could this extraordinary power of chan- 
cery still be invoked. Constantly from that time 
until now, the English court of chancery has re- 
fused to issue an injunction solely against commit- 
ting a crime ; and during the same period grew up 
the doctrine that it would not enforce contracts for 
personal labor. This is the important matter I 
referred to in the last lecture — that you may obtain 
the actual performance of a contract by bringing 
into chancery the party refusing to perform it in 
all cases of property right, in all cases except 
where the contract is merely for personal service. 
These two principles, that chancery will not en- 
join against criminal offences, and will not en- 
force contracts for labor and personal services, are 
of the very greatest importance. 

We started oar courts of chancery in this coun- 



122 LABOR IN ITS RELATIONS TO LAW 

try, giving them the same jurisdiction they had 
in England. In fact the Federal law expressly 
states that they shall have such jurisdiction as the 
English courts of chancery had in Lord Eldon's 
time, about the beginning of this century. There- 
fore, as I hold, our courts of equity too may not 
interfere actively to prevent or punish a criminal 
offence as such, and may not enforce a contract of 
labor or personal service. But the property right 
remained; that is, you could go into chancery to 
prevent a man, or set of men, from committing 
a definite injury to property, and particularly 
when the injury was of such sort, or consisted in 
such an indefinite series of injurious acts by an in- 
definite number of people, that the common-law 
remedy for damages was not adequate. Now, this 
is a valuable jurisdiction, and, so far, it is well 
enough. But in 1887 was passed the United 
States law regulating interstate commerce, and in 
1890 the United States law against trusts. These 
extraordinary statutes were meant to be in the in- 
terest of the people. They attempted both to 
prevent combinations in restraint of trade, to 
raise prices, etc., and combinations to interfere 
with interstate commerce. But the extraordinary 
feature of them was certain sections which gave, 
as it were, a certain property right to the United 
States in subjects of interstate commerce, and ex- 
pressly authorized the United States to go into a 



FORECAST OF THE FUTURE 123 

court of chancery and proceed, by injunction, 
against men who interfered with trade between 
the States. Now, that part of the act which was 
aimed to protect the public mainly, failed. As 
you know, the reorganized sugar trust escaped the 
anti-trust law entirely for the reason that being 
now a corporation established in one or more 
States merely for the purpose of refining sugar, the 
Supreme Court of the United States held that 
they could not assume that the sugar they made 
was to be the subject of interstate commerce, and 
therefore the sugar trust did not come under the 
statutes. But, on the other hand, in the great 
business of railways, and also of stevedores, sail- 
ors, wharf-laborers, and certain other classes of 
laborers who were employed in handling goods 
designed for shipment to another State, these stat- 
utes gave express power, and, in fact, directed the 
United States, through its Attorney-General and 
District Attorneys, to interfere actively by the 
strong arm of a court of chancery, and restrain 
any men, or body of men, who interfered with this, 
as it were, property right. Before that the gov- 
ernment could, at most, only have been held to 
have such property right in the United States 
mails; but the practical effect — and I am not now 
speaking technically — of these statutes was to ex- 
tend such property right to any articles which 
were, or were intended, to become the subjects of 



124 LABOR IN ITS RELATIONS TO LAW 

interstate commerce. This actually put the whole 
transportation interest of the country under direct 
charge of the government, with the mandate to 
the government to interfere and see that no 
combination was made against such transporta- 
tion. 

As a result of this, such combinations, strikes, 
or boycotts became an unlawful conspiracy ; for 
that was now unlawful which, before the statute, 
had not been ; and under the definition of " con- 
spiracy " I gave you in my last lecture, you will 
easily see that all such combinations fell at once 
under what we called the first branch of con- 
spiracy ; hence, the omnibus injunctions levelled 
against not only the actual offender, Debs, or 
others, but against any men or class of men, 
though unnamed in the bill and unknown, who 
might after interfere with such transportation ; and 
hence, under the contempt process, they were ar- 
rested by United States Marshals, brought into 
court, and imprisoned without jury trial, and in 
some cases long after the danger or emergency 
which justified the injunction had passed. 

Now, under the two laws I have mentioned, 
there is no way of avoiding this except by passing 
new laws. As the Supreme Court has just held, 
the sole question is one of jurisdiction ; and if the 
persons proceeded against were properly before a 
court of equity, and the court had jurisdiction of 



FORECAST OF THE FUTURE 125 

the subject-matter, the power to punish them by 
contempt follows as a matter of course. 

Objections to Equity Government. 

There seem to me to be two objections to this : 
I mean objections on broad ground of expediency 
and right, and the future safety of the government, 
not, of course, technical objections of law. One 
is, that as we now stand, any laborer, or class of 
laborers, though he has received no notice of a 
suit in court, may find, any day, that an ordinary 
trespass or neglect of duty made by him will sub- 
ject him to a criminal punishment without in- 
dictment, jury trial, or certain laws defining the 
extent of the punishment ; he may possibly find 
himself in jail without a trial, though he him- 
self has committed no overt act, but merely by 
being a member of a trades-union or combina- 
tion, some of whom have committed an overt act 
of trespass, or, perhaps, even solely because the pur- 
pose of such combination or union has been by a 
strike or boycott directly, or indirectly, to interfere 
with transportation. This is one objection. The 
other rests on broader ground still. As you know, 
our Constitution provides that the executive and 
judicial branches of government shall be forever 
distinct. This is not only because the judicial 
branch is in no sense competent to perform execu- 
tive functions, but, because from the very nature of 



126 LABOR IN ITS RELATIONS TO LAW 

their judicial duties, they ought not to become ac- 
tive participants in the important events which 
they have to judge ; and there is one other thing 
still which increases this new executive power very 
much more — that is the peculiar process of putting 
corporations, railroads and so on, in the hands of 
receivers when they cannot pay their debts. As 
you know, in modern times whenever a corpora- 
tion finds it cannot pay its debts, it rushes into a 
court of equity and gets some person — usually one 
of its own officers — appointed receiver, and there- 
upon all suits and claims against the company are 
suspended. Corporations do this for very much 
the same reasons, and with very much the same re- 
sults, as when an individual sought the sanctuary 
of a church in mediaeval times. In the sanctuary 
of the receivership the corporation cannot be 
touched. But the labor result of it is purely for- 
tuitous, one of those accidental consequences which 
shows again that you never know where the result 
of an extraordinary law or remedy is going to end. 
The technical doctrine of a court of equity is that 
the receiver is the officer of the court. As such, an 
interference with a railroad in his hands is an in- 
terference with the order of the court of equity, 
which, at once justifies all this injunction and con- 
tempt process of which I have spoken. During 
the last few years a vast proportion of our railroads 
— possibly one- third in mileage — went into the 



FORECAST OF THE FUTURE 127 

hands of receivers, that is, into the hands of the 
courts. They were run by the judicial branch of 
government. Any interference with their running 
became a contempt of court, and, consequently, 
a strike upon a railroad in the hands of a receiver 
might subject the strikers to this extraordinary 
punishment, when a strike against an ordinary 
railroad would not have done so. This receiver- 
ship process, with the Interstate Commerce and 
the Anti-Trust Laws, are the principal causes of 
this immense extension of the function of the 
Federal courts in the last few years, so that they 
have practically found themselves part of the execu- 
tive of the government ; and here, I think, is the 
greatest danger of all. Physically and morally our 
courts ought not to be required to stand such a 
strain. In fact their power in so doing is far 
greater than that of the executive itself, for the 
reason that the executive is subject to the habeas 
corpus act, and the ordinary restrictions of crimi- 
nal process, but the equity courts, although the 
punishment, of course, is never extreme, are not. 
They, or their appellate courts, must themselves 
judge the propriety of their own acts. We all 
want order maintained throughout the country, 
and most of us, doubtless, commended Mr. 
Cleveland for his prompt and forcible action in 
the Chicago strike : but if such action had been 
expressly based upon the ground that the trans- 



128 LABOR IN ITS RELATIONS TO LAW 

portation of the mails was being interfered with, 
that riots and crimes were being committed which 
made, practically, a state of insurrection, so that the 
republican form of government in certain locali- 
ties was being threatened, rather than upon the 
ground so much less impressive to the public mind 
that certain equity processes of Federal courts were 
not being executed ; and then if all the offenders, 
whether arrested by troops or by deputy-marshals, 
had been brought before the Federal grand jury, 
indicted and tried by a jury in the ordinary way, 
I cannot but think that the lesson to the people 
would have been better given, and certain great 
dangers in the future avoided ; for the govern- 
ment, and especially the judicial branch of the 
government, must not even appear to take sides in 
this labor question. 

So much for these extreme remedies. As to pri- 
vate employers, they may safely be left to protect 
themselves by the remedies now open to them. It 
does not seem to me that their side is in any great 
danger at present, except perhaps from hasty and 
unusual legislation, which I have so often spoken 
of in these lectures. Under that growth of the 
modern doctrine, which I have tried to describe, 
they are free to combine when combination is rea- 
sonable and possible, and will doubtless do so 
should it become necessary. 






FORECAST OF THE FUTURE 129 

Co-operation. 

Turning now to the labor side. The first of the 
remedies commonly suggested to us is that of co- 
operation or profit-sharing. I wish it could be 
said that the progress of this in the past had been 
such as to justify a feeling that this might be the 
solution : but in the first place, you must note that 
under the system of the much-abused corporation 
itself, it has always been possible for the laborer to 
become a partner with capital in his own employ- 
ment if he chooses. It is rather singular that at- 
tention has been so rarely drawn to the fact that 
in any mill or industry to-day. for they are nearly 
all corporations, it is perfectly possible for an em- 
ployee to buy stock, and therefore get his share in 
the extraordinary profits, if any there be. As we 
know, the laborers never take advantage of it. 
■ do they not ? Probably the answer must be 
simply that as capitalists they are discontented 
with the ordinary returns which capital brings its 
-ssor. It was distressing, the eagerness with 
which the laboring classes rushed into the benefit 
societies of a few years ago, and distressing the 
amount of hard-earned savings they must have lost 
in these concerns simply because they promised ten 
or twenty per cent., or something far above the 
proper return upon capital. But the fact is that 
the laborer is not induced to save money for the 
purpose of getting the modest return which mod- 
9 



130 LABOR IN ITS RELATIONS TO LAW 

ern conditions allow to capital. This is natural 
enough when we consider the amount of savings 
that would be needed to give a skilled laborer, in 
dividends, the same amount per year for the last 
years of his life that he earned when in his prime. 
The normal return upon money put out at interest 
is probably not over four per cent, when we allow 
for losses ; but taking it higher than this, regard- 
ing it as a dividend, it is certainly not over five 
per cent. Counting bad investments with good, 
that man is very fortunate who gets an average of 
five per cent, dividends upon all his stocks. Now, 
if I assume a skilled industrial laborer to make 
$600 a year during the best years of his life in 
wages, it requires an investment of $12,000 to 
realize that sum, which is precisely the full wages 
for twenty years. How can the laborer hope to 
save any such capital as that ? We cannot blame 
him for not being attracted to scrimp and save for 
many years for the sake of getting some trifling 
fifty or one hundred dollars yearly return as a cap- 
italist — too little for a living, and acquired at too 
much sacrifice to be an inducement as pocket- 
money. 

Profit-Sharing. 

There is more hope in actual profit-sharing 
plans, more hope, perhaps, in co-operation. The 
reason of this is that here the laborer becomes. 



FORECAST OF THE FUTURE 131 

not the ordinary small investor of capital, but an 
actual partner in the possible extraordinary profits 
of his business. Forty years ago there was, doubt- 
less, great hope in this direction, and many of our 
States have elaborate statutes authorizing co-opera- 
tive and profit-sharing corporations ; but they have 
not been taken advantage of so frequently as we 
could wish, and, moreover, the event shows that the 
common course of a successful co-operative cor- 
poration is to develop into an ordinary stock com- 
pany, owned mainly by two or three individuals 
whose greater ability or greater acquisitive powers 
have enabled them to make a success of the busi- 
ness. I by no means wish to dismiss co-operation 
as an idle dream, I only say that I fear we cannot 
yet call it a panacea for labor troubles. 

True Demand of Unions. 

The fact is that what the laborer really wants, 
and what the trades- unions in England have at 
last got to the point of admitting that he wants, 
is not profits as a capitalist, but a greater share of 
the profits of industry as part of his own wages. 
This is the plain English of it, and this we should 
fairly recognize. In other words, they desire a 
partnership with capital, not in the sense of being 
capitalists to an infinitesimal extent themselves, 
but that it should be recognized either by fact or 
by law that labor and capital working together 



132 LABOR IN ITS RELATIONS TO LAW 

are, in effect, partners. Both are to be paid as part- 
ners out of the output of their industry, out of 
the realized profits, not out of any mythical wages 
fund which represents only that sum which will 
support all the persons in any one year seeking la- 
bor in the country at the lowest living rates. 
Rightly or wrongly, this is the demand of labor, 
and it is for the future to determine how far it can 
be safely and fairly recognized. Perhaps, at pres- 
ent, the trades-unions have only got to a point of 
simply exacting increased wages, without regard to 
the industry. Mr. Spyers, who wrote the last 
English book on the labor question, a summary of 
the results of the Royal Commission of Labor of 
1893, tells us, "It is clear that the natural attitude 
of trades-unions toward profit-sharing is one of 
hostility. Being, essentially, organizations for ap- 
preciating wages at the expense of profits, they 
could hardly be expected to welcome with cor- 
diality a scheme which gives the workman an in- 
terest in the integrity of the profit-fund. ' ' But, 
whichever labor desires, be it called increased 
wages or a share in the profits, how is it to be 
brought about? 

" Collective Bargaining." 

To this we answer, by combination of labor 
which will enable them to use what I have called 
collective bargaining. There is no doubt of this, 



FORECAST OF THE FUTURE 133 

and I for one should be glad to see the bulk of 
the industrial laborers of the country organized in 
definite unions, and conduct their interests in this 
way. Most progressive employers are now begin- 
ning to find the advantage of having a definite 
and responsible body to deal with, so that, when 
they make an agreement with them, it amounts 
to something, rather than with irresponsible work- 
men. Most employers are more and more will- 
ing to practically arbitrate wherever they can find 
such a responsible body. The difficulty to-day is 
quite as much in getting the laborers to organize 
into such definite unions, witli the further diffi- 
culty that the laborers, when they have so organ- 
ized, find it difficult to enforce their own rules, 
and, consequently, any contract or compromise 
they may make even as against their own members. 
The evidence of the English Commission was full 
of instances where men who have endured the 
miseries of a strike for months at a time without 
a murmur, and in perfect obedience to their offi- 
cials, yet, on the most trifling grounds, refused to 
endorse the terms which those officials had ar- 
ranged with the employers. It is to combat this 
difficulty that many unions make strict rules 
against members leaving their employment with- 
out the sanction of their union, the offence being 
punishable by expulsion. How can the employ- 
ers bargain or arbitrate with employees, even with 



134 LABOR IN ITS RELATIONS TO LAW 

the unions, when the members of the unions are 
not true to the union itself? In the English 
strike of the blast furnace men, after the union 
had agreed upon a satisfactory sliding scale of 
wages, the engine-men and crane-men left the 
association and set up an independent organiza- 
tion of their own. As was pointed out by Mr. 
Bell before the English Commission of Labor, it 
would be impossible to bargain with the unions if 
this sort of thing happened often, for one cannot 
negotiate with a body that one cannot grasp. 

The usual method the union employs for con- 
trolling these members is the beneficiary fund, in 
which they all have an interest, and which they 
are liable to lose if expelled from the union. 
The English statute, you will remember, while 
recognizing the legality of trades-unions, makes a 
special exception that the contracts made between 
them and their members cannot be enforced by 
either side in the courts. This was done at the 
request of the unions, who feared endless litigation 
with their own members, for their beneficiary 
funds are not only an insurance to the members 
(meeting that very question of their old age 
which we discussed a moment ago) and a guaran- 
tee both to the laborer and the employer, that 
any collective bargaining made by the unions will 
be carried out in times of industrial peace, but a 
fund for strikes in times of labor war. Now, labor 



FORECAST OF THE FUTURE 135 

leaders tell me that they regard this last function 
as the highest purpose of the fund. In other 
words, they desire to be at liberty to exhaust the 
whole accumulated fund in a strike, if necessary, 
in spite of all the individual contracts they may 
have with the members who have contributed to 
it for death benefits, insurance in times of illness, 
support while out of work, etc. Of course, if the 
union with its fund were legalized under any cor- 
poration law, such an entire application of the 
fund to strikes might be a breach of contract, and 
would certainly be a breach of trust from which 
the officers of the trades-union could be restrained 
at suit of any individual member. The principle 
of all labor combinations up to date has been to 
secure the greatest possible amount of power by 
lawful methods, or even by unlawful combinations, 
while not assuming any responsibility whatever, 
either to employers or to their own members. 
Now, I am well aware that it is, at first sight, an 
attractive position to labor to be in the position 
of a guerrilla army, which, while making a simul- 
taneous attack, can dissolve at the moment of any 
defeat, and scatter, so that while it may sometimes 
win. it can never lose. Nevertheless, I believe 
these advantages are superficial, and the true in- 
terest of labor lies the other way. This is, after 
all, like the position of slaves or savages. No 
contracts can l>e enforced against them ; they can 



136 LABOR IN ITS RELATIONS TO LAW 

scatter in the woods and do individual damage 
when as an army they have yielded.- Never- 
theless, in the long run, while their outbreaks 
are suppressed, they cannot, by peaceful means, 
gain much for themselves as a class. I have yet 
to learn that it is a blessing to a free citizen, or a 
free body of citizens, to be unable to make an 
agreement with the persons with whom they deal. 
Provided only the civilization of a country be di- 
versified enough to give a chance for every man, 
the true power of labor comes from its being in 
a position to dictate agreements for wages and 
times of labor, which the other side has the power 
to make ; and it has not such power with persons 
practically incapable of contract. And this, I 
think, is true in modern times, even if we admit 
that there is a mass of unemployed ready to come 
in at any price, for that very power of responsi- 
ble combination enables the workman in skilled 
trades— and nowadays all trades are skilled — to 
put up a barrier against such outside parties by 
being, as a body, on terms of contract with their 
own employers, far more effective than under a 
system of every man for himself. 

Remedies open to Labor. 

If you agree with me that we are to have com- 
binations of labor which shall bargain collectively 
with capital, what weapon shall they have for en- 



FORECAST OF THE FUTURE 137 

forcing their demands? I answer, if every combi- 
nation be really successful, that is, if it include the 
bulk of workmen in a given trade, by strikes — not 
by boycotts, except of the merely persuasive kind, 
and addressed primarily to members of their par- 
ty, that is, to other laborers. The fact that the 
striking workmen are to be supported during 
the strike out of union funds will ultimately prove 
a sufficient guaranty at least of prima facie justifia- 
ble cause ; and we must not forget that there is 
one other motive of a union strike which is per- 
fectly legitimate ; that is, as was well pointed out 
in the evidence before the Labor Commission, in 
order to show that a union is strong enough to strike 
effectively, both for the purpose of convincing the 
employer that the strike is dangerous to him and 
that the labor body striking is one of sufficient im- 
portance to deal with ; and for the purpose of 
convincing the employee that the union has grown 
sufficiently to make it pay for them to sacrifice 
part of their earnings for its support. There 
should, of course, be a reasonable ground for a 
strike, but if the union approach the employers 
with a definite and reasonable request, and a 
steady determination not to take "no" for an 
answer, it will at once gain the confidence of the 
workmen ; and if it convinces the employers that 
it has gained the confidence of the workmen, the 
battle is already half won. The evidence before 



138 LABOR IN ITS RELATIONS TO LAW 

the English Commission showed that employers 
seldom fight, or care to fight, against an organiza- 
tion which they feel really has the unqualified sup- 
port of its members. Industrial warfare, there- 
fore, is sometimes necessary to prove the right of a 
union to its existence. Hence, strikes, and hence, 
too, the reason that the weaker and younger the 
union, the more strikes it is bound to declare. 
But the reason of it is, and the facts in England 
at least show, that as unions grow and become 
generally effective and recognized, strikes decrease 
in number. They are then in a position not only 
to demand arbitration, but really to get that best 
kind of arbitration, which consists in the meeting 
of the employers and the employed, both with 
full power to settle the question, and with the in- 
tent to do so in a reasonable way. 

This brings us to the question of the settling of 
strikes. In so far as they come to actual disorder, 
I have expressed it as my opinion that they should 
be settled only by the ordinary course of the 
criminal law. In so far as a boycott is a conspir- 
acy to do a wrongful thing, or to wrong a defi- 
nite person, I think the law of criminal conspiracy 
is in this country adequate ; but the greater and 
higher questions, where no such wrong is com- 
mitted on both sides, where there is neither con- 
spiracy, disorder, or intimidation, how are these 
real issues to be settled ? 



FORECAST OF THE FUTURE 139 

Arbitration and Conciliation. 

Much has been safd of courts and arbitration, 
and here again I have no desire to minimize their 
value. I believe further laws should be passed to 
establish them, and I hope such laws will be taken 
advantage of. Seven or eight of our States already 
have elaborate laws embodying not only a state 
board of arbitration and conciliation, but allowing 
the creation of private boards to settle special con- 
troversies in any particular trade or locality. It 
has been found by experience that a permanent 
State board is not a good body to settle trade dis- 
putes in a great bulk of the cases. Modern indus- 
tries are subject both to local conditions and pe- 
culiarities of their special product and of the 
market for it. In the Haverhill shoe strike last 
winter we were told that the conditions of the 
Haverhill trade were so peculiar that even a body 
familiar with the general shoe industry, or with 
the shoe industry of other places, would be for 
that very reason incompetent to settle the ques- 
tions which arose at Haverhill. That part of arbi- 
tration statutes, therefore, which provides for the 
mutual creation of a board chosen from among per- 
sons conversant with the particular industry is a 
most valuable one. And this brings us to the main 
point about arbitration, which is, that it is, in its 
essence, voluntary. I think I may state broadly 
that involuntary arbitration is entirely out of the 



LABOR IN ITS RELATIONS TO LAW 



question. If the government choose, it may make 
arbitration compulsory upon corporations, which 
are its creatures ; so, the United States Govern- 
ment, having half taken over the railroads under 
the Interstate Commerce Act, might wholly take 
them under guardianship and pass such a law as to 
them. There is already a general act providing 
for voluntary arbitration, and authorizing the 
President to appoint a committee of arbitrators to 
investigate and report. It was under this statute 
that Mr. Cleveland acted at the time of the Chi- 
cago riots. Mr. Wright, the United States Com- 
missioner of Labor, has recently gone very far in 
the direction of recommending a statute providing 
even for involuntary arbitration, at least in the 
case of railroads. Nevertheless, until the Federal 
Government is willing to undertake to run the 
railroads of the country, and subject our already 
over-strained party system to the tremendous re- 
sponsibility and temptation that would be imposed 
upon any administration by so enormously increas- 
ing the civil-service list, I believe such statutes 
would be unwise, probably unconstitutional, and 
certainly unjust, for the reason that they would be 
one-sided. The laborers themselves are pretty 
well agreed that they do not want involuntary ar- 
bitration, and they, for their part, will not submit 
to it. Moreover, the word "arbitration" be- 
comes a misnomer when applied to an involuntary 



FORECAST OF THE FIT' 141 

proceeding. Such a proceeding differs in no par- 
ticular from an ordinary suit in court. You are 
simply establ - I new and peculiar court with 

extraordinary powers which, ultim; 

and the precedent of its own decisions, would dif- 
fer in no particular from any court now • 
There is no advantage, therefore, in involuntary 
arbitration : but voluntary arbitration, and, par- 
ticularly, voluntary conciliation and investigation 
of trade disputes, is certainly a \\ is _ . : we 

only h will increase in the 

re. But. after all, the best remedy is not in the 
arbitration, not even the conciliation of any 
side party, but the fair bargaining of both sides 

com:. _ th mutual power and mutual 

responsibility. They may. stablish, 

as has frequently been done in England, spe 
imissions of persons in the trade, who may 
bitrate between them when they disagree ; and 
remedy when sanctioned, not created, by the 
_-. more elastic and intelligent than any gov- 
ernmental creation, is the best board of arbitration 
all. I believe that with the developments 
and improvement - collec- 

tive labor relation, we shall find, as they have in 
England, that much of the need for artificial arbi- 
tration has gone by. 



142 LABOR IN ITS RELATIONS TO LAW 

Trusts. 

As to the question of trusts, the main interest of 
the laborer in them is that of the consumer. So 
far as trusts affect the employment relation, I am 
inclined to think that any powerful monopoly is, 
on the whole, injurious. Anything which so 
greatly extends the power of one side in that col- 
lective bargaining we have so often mentioned, 
strengthens him as against the other. It is easy 
to see, for instance, assuming all the cotton-mills 
in the country to be in one trust, how their power 
of black-listing could be infinitely extended. 
Black-listing, the prevention of laborers who have 
once struck from getting employment of other 
employers, may now be forbidden by law, and 
it is so forbidden in many States. If all the em- 
ployers were one body, there would be no possible 
legal method of preventing this. Black-listing 
would cease to be boycotting, but merely the re- 
fusal of the employer to re-employ an employee 
who has voluntarily left his service by strike ; and 
despite the argument that may lie in the view so 
well expressed by Professor Jenks, it seems to me 
that, on the whole, the effect of monopolies is de- 
cidedly to limit the demand for labor. If all of a 
trade is in a monopoly, only that labor will be em- 
ployed which is really necessary for the amount of 
output, which is really necessary or profitable. 
One great advantage to the laborer of independent 



FORECAST OF THE FUTURE 143 

individualistic industries is that everybody is con- 
tinually embarking in enterprises in the hope of 
making a profit which may never be realized, bat 
the laborer duly gets his wages therefor. I think 
I can illustrate what I mean by a clear example. 

The Baring Failure. 

I have been told in England that the spectacle 
of the Baring failure had a very soothing influence 
upon labor agitation. It was a great object-lesson ; 
in it the workmen of the English industrial world 
saw a vast sum of money, probably as much as one 
hundred and fifty millions of dollars, absolutely 
sunk by capitalists, mainly in giving employment 
to labor. The great bulk of the money, as was 
well known by them at the time, went in the pros- 
ecution of great industrial enterprises or internal 
improvements in several parts of the world, and the 
money was lost by actual count very largely in 
wages. Xow, the State, still less a monopoly, will 
never attempt unprofitable enterprises. Under an 
individualistic system of private competition a great 
many more sugar refineries were running in this 
country than were necessary to meet the demand, 
but the Sugar Trust has closed many of them. 
Nothing is more usual than for the amount of wages 
paid in an enterprise to exceed the value of the total 
output. 

It can be proved that the output of most gold- 



144 LABOR IN ITS RELATIONS TO LAW 

mines does not amount to the actual money sent 
into the camp for working them. I have been 
assured that in Cripple Creek, Col. — rich as 
that locality is in gold — the amount of money 
sent into a camp in the form of supplies and 
money to pay labor far exceeds the value of the 
gold that actually goes out. In other words, 
mining, like many other kinds of industry, is a 
lottery ; viewed as a whole it does not really pay. 
People embark their money in the hope of getting 
a prize, and that money goes mainly to pay the 
wages of labor. I hold strongly that under a sys- 
tem of absolute state socialism there would be far 
less demand for labor than there is to-day. 

True Path of Progress. 

In association, therefore, in collective bargain- 
ing, not in going back on all past history and 
giving up the contract, but by extending, strength- 
ening, and improving it, lies, as it seems to me, the 
path of the future. Just as the laborer employed 
even by the day assumes a higher relation than the 
slave or serf, so the laborer employed by definite 
intelligent contract is in a higher relation than he ; 
and, most of all, the laborer employed under a con- 
tract made by all the laborers of his class, made by 
a contracting party with power at least equal to 
that of the employers, greater than that of the in- 
dividual employer, is in a position better still. The 



FORECAST OF THE FUTURE 145 

Haverhill strikers last winter were said to have 
struck against the contract system. What they 
really struck against was a bad contract, which, 
individually, in some cases, they had not the in- 
telligence to refuse to sign, and which, collectively, 
they had not the power to resist or modify. Indefi- 
nite relation is the essence of slavery. Contract is 
the charter of freedom. With the power to demand 
and the power to enforce labor contracts, for wages 
and for times which shall be the utmost the em- 
ployer can afford to concede, and with intelligent 
sympathy on the part of the public, the newspaper 
press, and the consumer, a sympathy not blind, but 
anxious to support labor in its demand for a con- 
tract which is reasonable, both by public opinion 
and by the enactment of laws where they are in- 
dispensable, I hold that the improvement of the 
condition of industrial labor may make greater 
strides in the next century even than it has in the 
last, and that, without jeopardizing any right, any 
freedom, or any object, which we Americans hold 
dear. 



NOW READY 



LABOR IN ITS RELATIONS 
TO LAW. 

Pour Lectures delivered at the Plymouth School 

of Ethics, July, 1S95. 

By F. J. STIMSON, 

Author of " American Statute Law," "Hand-Rook to the Labor Law of the 

United States," Secretary of the National Conference of State 

Commissions upon Uniformity of Law, etc., etc. 



i6mo, 75 cents net. 



This book will serve as a convenient and interesting com- 
mentary on the author's forthcoming, more formal treatise upon 
the law of the subject, as well as a popular statement of the growth 
and culmination of labor problems, the effect of recent United 
States statutes, and the attitude both of American courts and of 
the best expert opinion on the future of the question. 

Mr. Stimson is well known by his two important volumes on 
American Statute Law, and as an authority upon statutes and con- 
stitutional questions arising therefrom. Of these four lectures, the 
first is upon the History of the Law of Labor, the second upon the 
Employment Contract, the third upon Strikes and Boycotts and 
Injunctions, and the fourth is devoted to a Forecast of the Future, 
with a reasonable statement of the positions of both sides, a con- 
sideration of impossible claims, and a reasonable statement of the 
possible solution. The popular nature of the subject and the 
simplicity of the style make this little book eminently one for 
general reading. 



For sale by all booksellers, or sent, post-paid, on receipt of 
price, by 

CHARLES SCRIBNER'S SONS, 

153-157 Fifth Avenue, New York. 



IN PRESS. BY THE SAME AUTHOR. 



HAND-BOOK TO 

THE LABOR LAW OF THE 

UNITED STATES. 



i2mo. In press. 

This book is not intended to be a law text-book, but, as its title 
indicates, a popular hand-book to the law of labor, employers' con- 
tracts, strikes, boycotts, and the relation of the wage earners both 
to ordinary employers and to railway or other corporations and 
trusts, as it exists in the several States of the Union to-day. 

It is well known that the labor question has had more develop- 
ment, both by a statute and court decision, during the last five 
years than for centuries previous, and there is at present no book 
completely covering the subject. Mr. Stimson's work is intended to 
supply this want. It will contain a complete statement of the vari- 
ous attempts made by statute, in the several States of the country, 
to deal with the labor question ; and will concisely show both the 
statute law and the view taken by the courts upon all matters of 
interest to the wage-earner up to the time of the summer of 1895. 

Among the subjects treated of will be the regulation, by statute 
or otherwise, of hours of labor ; of the labor of women and children; 
of labor done on public works, or in special occupations ; and of all 
the laws which have been passed on these subjects, as well as upon 
that of the rate and method of payment of wages, including those 
laws which have been declared unconstitutional by the courts. 
It will also treat the general question of the employment contract, 
and trace its development in modern law, with special reference to 
recent statutes concerning intimidation, obligatory membership of 
benefit societies, prison labor, co-operation, and profit-sharing; 
and the statutes concerning factory inspection and the regulation 
of sweatshops, with their interpretation by the courts. 

Particular attention will be given to the growth of the law of 
conspiracy, with reference to the legality of strikes and boycotts, 
trades unions, and the modern regulation and protection of 
unions for the benefit of employees. The relation of corpora- 
tions to labor will also be discussed, and particularly that of 
railroad corporations through the recent statutes of the United 
States regulating trusts and interstate commerce, and the liability 
of strikers and others, both to the criminal law and to summary 
process of the Federal equity courts, will be fully considered, as 
well as the progress already made in legal provision or recognition 
of machinery for arbitration and conciliation, whether by the State 
or by private parties. 

As the book is intended to be a hand-book for general use, it will 
not be over-burdened with legal citations, reference being given 
only to all the statutes so far enacted bearing upon the subject, and 
to the leading decisions of courts where such exist. 

For sale by all booksellers, or sent, post-paid, on receipt of price, by 

CHARLES SCRIBNER'S SONS, 

153-1S7 Fifth Avenue, New York. 



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